On November 21, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its Enforcement Guidance on National Origin Discrimination, which outlines the agency’s guidance on the provisions of Title VII that prohibit national origin discrimination. The Guidance offers the agency’s interpretation of how the law would apply in specific workplace situations, as well as practical tips (described by the EEOC as “promising practices”) for employers to avoid national origin discrimination claims. The Guidance replaces the agency’s 2002 compliance manual section on national origin discrimination. The EEOC also promulgated a question-and-answer publication on the Guidance and a small business fact sheet that highlights the document’s major points for small businesses.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on national origin as well as retaliation against employees who oppose workplace discrimination. The Guidance 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. Thus, according to the Guidance, national origin discrimination can be based: (1) on a person’s place of origin, which may be a country, a former country, or a region, or (2) on a person’s national origin or ethnicity, which means a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics. The Guidance also explains Title VII’s prohibitions on harassment based on national origin as well as retaliation.
Although employers will likely be familiar with much of the material covered in the Guidance, the document also offers a few noteworthy interpretations of Title VII to be mindful of. For one, the EEOC interprets Title VII to prohibit employment discrimination based on perceived national origin. As an example, the Guidance notes that Title VII prohibits employment discrimination based on the belief that someone is from the Middle East or is of Arab ethnicity, regardless of how an employee identifies herself or whether she is, in fact, from one or more Middle Eastern countries. In addition, the EEOC interprets Title VII to prohibit discrimination against an individual because of his association with someone of a particular national origin, such as discriminating against an employee or applicant because that person is married to or has a child with someone of a different national origin or ethnicity. Third, the Guidance explains that employers cannot rely on preferences expressed by coworkers, customers, or clients as a basis for employment decisions that are impermissibly based on national origin.
The EEOC also places particular emphasis on the issue of language in the workplace, and explains that while “[e]mployers may have legitimate business reasons for basing employment decisions on linguistic characteristics . . . because [such] characteristics are closely associated with national origin, it is important to carefully scrutinize employment decisions that are based on language to ensure that they do not violate Title VII.” Thus, an employment decision may legitimately be based on an individual’s accent if the accent interferes materially with job performance, meaning that: (1) effective spoken communication in English is required to perform job duties, and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English. In addition, English fluency or English proficiency requirements are permissible only if required for the effective performance of the position; in other words, justified by business necessity.
The Guidance concludes with a number of “promising practices” for employers that are meant to reduce the risk of Title VII violations. These practices include: (1) using a variety of recruitment methods, as opposed to word-of-mouth recruiting, to attract a diverse pool of job applicants; (2) establishing written objective criteria for evaluating candidates for hire or promotion, communicating the criteria to prospective candidates, and applying those criteria consistently; (3) developing objective, job-related criteria for identifying unsatisfactory performance or conduct that can result in discipline, demotion, or discharge and translating policies into, and offering training in, the languages spoken by employees; and (4) clearly communicating to employees that harassment will not be tolerated and providing training on anti-harassment policies and procedures to employees.