On Nov. 21, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new and updated Enforcement Guidance on National Origin Discrimination, replacing its 2002 guidance on the subject.
In the guidance, the EEOC defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.” This includes discrimination because of an individual’s “place of origin” such as a country, a former country (e.g., Yugoslavia) or a geographic region closely associated with a particular national origin group (e.g., Kurdistan). Further, a “national origin” or “ethnic” group is a “group of people sharing a common language, culture, ancestry, race and or other social characteristics,” such as “Hispanics, Arabs or Roma.”
Under the guidance, discrimination includes treating persons less favorably because they do not belong to a particular ethnic group, as well as because they do. Employees are also protected from discrimination because they associate with someone of a particular national origin (e.g., by marriage). The EEOC also takes the position that national origin discrimination can be based on an individual’s “perceived” status as a member of an ethnic group. However, as we explained in a recent blog based on the Longoria decision in the Northern District of Ohio federal court, few courts (including none in Ohio) have recognized such a theory of liability.
The guidance goes on to address language issues. With respect to “accent discrimination” it provides that an employment decision may legitimately be based on an individual’s accent if the accent “materially interferes” with the employee’s ability to perform the job duties, but only if effective spoken communication in English is required to perform those duties. As to English fluency, such a requirement is permissible, but again, only if required for the effective performance of the particular position. And, with respect to “English only” policies, the guidance essentially provides that an across the board requirement likely violates Title VII. Any such policy should be narrowly tailored to the requirements of a particular worker in a particular area of operations, and employers must provide adequate notice of language-restrictive policies.
Addressing citizenship issues, the guidance states that Title VII applies regardless of immigration status or authorization to work (but also recognizes that certain immigration laws prohibit employers from hiring individuals who are not authorized to work). Further, it provides that Title VII applies regardless of citizenship or immigration status, so that foreign nationals are also covered.
The guidance also addresses harassment and retaliation in the context of national origin discrimination. And it concludes with a discussion of “promising practices” for employers. Included among these is avoiding word of mouth recruiting, which could magnify existing ethnic, racial or religious homogeneity, recruiting from a diverse pool of potential applicants and having clear conduct standards and performance expectations without regard to issues of culture and ethnicity.
While it remains to be seen whether this guidance and others remain intact during the new administration, it appears likely that this guidance on national origin discrimination will remain in effect for some time to come. After being announced in June as proposed rulemaking, there were only 20 comments received, and there has been no apparent negative reaction to date. Accordingly, this guidance will likely be a part of the EEOC’s compliance manual for the foreseeable future and provides helpful information as to the approach the EEOC is likely to take in the event of a charge of national origin discrimination.