Earlier this month, the US Equal Employment Opportunity Commission (EEOC) announced a proposal to update its guidance on employment discrimination based on national origin. The proposal, which marks the EEOC’s first update to this particular guidance in 14 years, contains important information for employers and is available for public comment until July 5, 2016.
What’s National Origin?
Federal regulations define national origin discrimination as including employment discrimination that occurs “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1.
The regulations note that the EEOC defines national origin discrimination broadly, and that the EEOC will pay particular attention to charges alleging discrimination based on national origin considerations, including:
- marriage to or association with persons of a national origin group
- membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
- attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
- the individual’s name or spouse’s name being associated with a national origin group.
So What Does This Mean for the Workplace?
At the outset, it’s important to remember that EEOC guidance is not necessarily binding on courts. In addition, since this guidance has not yet been finalized, revisions remain a possibility. That said, the proposed guidance provides an illuminating look into how the EEOC approaches enforcement on this issue.
Some noteworthy issues raised in the proposed guidance include:
- Accents. Employers tread in dangerous waters if they use accents as a basis for making an adverse employment decision, as accents and national origin are often linked. While employment decisions may legitimately be based on accents, the EEOC proposed guidance states that this will require the employer to show that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”
- Word-of-Mouth Recruiting. Word-of-mouth recruiting may violate Title VII if the employer’s actions have the purpose or effect of discriminating on the basis of national origin.
- Social Security Number (SSN) Screening. Employers who have a policy or practice of screening out job candidates or new hires who do not have a social security number may constitute national origin discrimination, if work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected.
- Customer Preference. Employers aren’t permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII. The EEOC notes that company “look” or “image” policies, under certain circumstances, can act as a proxy for discriminatory customer preferences; adverse employment actions taken according to such policies can serve as the basis of national origin discrimination.
- Job Segregation. An employer may not use national origin as the basis for assigning (or not assigning) individuals to specific positions, locations, or geographic areas; nor may an employer physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin.
- Perceived National Origin. It’s important to note that employer actions may not have the purpose or effect of discriminating on the basis of national origin whether that is an individual’s real or perceived national origin.
- English-Only Rules. Work rules or practices requiring the use of English may be national origin discrimination as a person’s primary language is often intertwined with cultural/ethnic identity. The EEOC operates under the presumption that rules requiring workers to speak English at all times (including during lunch, breaks, and other personal time while on employer premises) violate Title VII.
These items are just a sampling of the information contained in the EEOC’s proposed guidance update. The full document is available here.