HIGHLIGHTS:

  • The Equal Employment Opportunity Commission revised its enforcement guidance with respect to national origin discrimination under Title VII of the Civil Rights Act of 1964.
  • The guidance explains that national origin discrimination is defined as discrimination that occurs because an individual is from or is perceived to be from a certain place, or because an individual has the physical, cultural or linguistic characteristics of a particular national origin group.

The Equal Employment Opportunity Commission (EEOC) revised on Nov. 21, 2016, its enforcement guidance with respect to national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC and other federal agency staff use the guidance to investigate, adjudicate and litigate claims of national origin discrimination brought under Title VII.

The guidance explains that "national origin" or "place of origin" includes countries, former countries and geographic regions that were never countries but were closely associated with particular groups, such as Kurdistan or Acadia. Moreover, the guidance explains that Title VII prohibits discrimination on the basis of a "national origin group" or a group of people sharing a common language, culture, ancestry, race and/or other social characteristics. Examples of "national origin groups" include Hispanics, Arabs and Roma.

National origin discrimination also includes discrimination based on ethnicity, as well as physical, linguistic or cultural traits that are closely associated with a national origin group. As an example, the guidance points to adverse employment action on the basis of an employee's "African-sounding accent or traditional African style of dress."

Relatedly, employers should be mindful of the EEOC's long-standing position regarding English-only workplace rules. Employers also should be aware that the Immigration Reform and Control Act (IRCA) prohibits discrimination based on citizenship, provided the candidate or employee is lawfully permitted to work in the United States.

The guidance clarifies that national origin discrimination includes perception and association. In other words, taking employment action based on the belief that someone belongs to a particular national origin group is unlawful, even if the belief is erroneous. As an example of discrimination based on association, the guidance explains that it is unlawful to discriminate against an individual because he or she is married to or has a child with someone of a particular national origin.

Furthermore, the guidance reminds employers that Title VII not only prohibits harassment based on national origin but also harassment that causes a hostile work environment. Unlawful harassment based on national origin arises when the harassing conduct is motivated by the victim's national origin and is so severe or pervasive that it alters the terms and conditions of the individual's employment. Incidents that may give rise to a hostile work environment include ethnic slurs, ridicule, intimidation, workplace graffiti and physical violence motivated at least in part by the victim's national origin. An unlawful hostile environment also may be created by the actions of nonemployees, including customers, vendors and other commercial contacts.

Tips for Maintaining Compliance

The EEOC offers several suggestions to help employers comply with the guidance, including:

  • Use a variety of recruitment methods to attract diverse pools of job seekers, such as newspapers, online postings, job fairs and open houses, publicly posted job announcements with a variety of community-based organizations, outreach through professional associations and search firms, recruiting from internship and scholar programs, and in-person connections. The guidance discourages relying solely on word-of-mouth recruiting that may magnify existing ethnic, racial or religious homogeneity in the workplace.
  • State that the employer is an "equal opportunity employer" and draft employment advertisements to notify prospective applicants of all qualifications, including language ability.
  • Establish written objective criteria for evaluating candidates for hiring, promotion and assignment. Communicate the criteria and apply it consistently to all candidates.
  • Develop objective, job-related criteria for identifying the unsatisfactory performance or conduct that can result in discipline, demotion or discharge.
  • Communicate policies effectively to all employees by translating policies and offering training in languages other than English, when necessary.
  • Use policies and actions to clearly communicate to employees that harassment is not tolerated.

These suggestions are useful for preventing all forms of unlawful workplace discrimination and harassment.

For more information, see the EEOC's Questions and Answers: Enforcement Guidance on National Origin Discrimination and Small Businesses Fact Sheet: National Origin Discrimination.