If you weren’t sure what it meant to discriminate against someone because of their national origin, the EEOC wants to help. The newly revised Section 13 of the EEOC Field Manual provides guidance on how the EEOC defines national origin (which is more than just what nation in which you originated) and gives examples of what might be national origin harassment.
What is National Origin Discrimination?
The EEOC considers national origin discrimination to include discrimination because of an individual’s or the individual’s ancestors’ place of origin—could be a country (e.g., China), a former country (e.g., Yugoslavia), or a geographic region closely associated with a particular national group (e.g., Kurdistan). The Guidance defines discrimination based on “national origin group” or ethnicity as well. That protected class is “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics”—like Hispanics or Arabs.
The Guidance provides a number of examples of what the EEOC thinks might be national origin discrimination. Below are some of the highlights;
- Ethnicity—for or against: No surprise– just like with other protected classes, you cannot discriminate against or in favor of individuals because of their national origin. So, you cannot exclude a candidate because he is Hispanic or Asian. However, the Guidance reminds everyone that national origin discrimination also includes discrimination against a person because she does not belong to a particular ethnic group, such as less favorable treatment of employees who are not Employers should consider this when trying to hire people with specific language skills. For example, if you need a Spanish speaker, require fluency in Spanish rather than preferring Hispanic candidates.
- Physical, linguistic, or cultural traits: Discrimination based on “physical, linguistic, and/or cultural characteristics closely associated with a national origin group”—like accents or styles of dress is on the EEOC’s radar. For example, the EEOC suggests that treating someone differently because of her African-sounding accent or traditional African style of dress could constitute discrimination based on African origin. So, if your dress code doesn’t permit expressions of ethnic traditions the EEOC may challenge it.
- Perceived national origin: Taking a page from the ADA, the Guidance says that Title VII prohibits employment discrimination based on the perception of someone’s national origin or ethnicity. So, the EEOC will be looking for decisions based on a belief—correct or not–that someone is, for example, from the Middle East, regardless of whether the employee is actually from a Middle Eastern country.
- Association with someone who is a different national origin: The EEOC makes clear that employers cannot make decisions about an individual because of his association with someone of a particular national origin. For example, you cannot make a decision about an employee because he is married to or has a child with someone of a different national origin or ethnicity.
- Citizenship status: The EEOC is looking for employment discrimination based on citizenship status if it has the purpose or effect of discriminating based on national origin. For example, employers cannot require all employees to be American citizens—although you must require that everyone provide proof of eligibility to work in the United States.
- Native American as national origin: The Commission states clearly that employment discrimination because an individual is Native American or a member of a particular tribe also is based on national origin.
As our workforce gets more and more culturally diverse, issues touching on national origin will come up more and more. Employers need to remember that the EEOC defines this protected classification broadly to include perceived national origin or cultural choices. In making employment decisions, remember that individuals don’t necessarily have to be foreign to be protected against national origin discrimination.