Why it matters

For the first time in more than a decade, the Equal Employment Opportunity Commission (EEOC) published new guidance on national origin discrimination. “This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment,” agency Chairwoman Jenny R. Yang said in a statement. The new guidance updates the definition of discrimination based on national origin 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,” and includes examples of “promising practices” by employers to prevent discrimination as well as those that would violate the law. For further assistance, the EEOC also released a small business fact sheet as well as a Q-and-A document. Employers should review the updated guidance to ensure compliance.

Detailed discussion

A lot can change in 14 years, the Equal Employment Opportunity Commission (EEOC) recognized, publishing new enforcement guidance on national origin discrimination to replace a 2002 compliance manual section on the topic. Approximately 11 percent of the 89,385 private sector charges filed with the agency in fiscal year 2015 alleged national origin discrimination, ranging from the unlawful failure to hire, termination, language-related issues, and harassment, the agency noted.

“The increased cultural diversity of today’s workplaces presents new and evolving issues with respect to Title VII’s protection against national origin discrimination,” the agency wrote in the new guidance. “This enforcement guidance will assist EEOC staff in their investigation of national origin discrimination charges and provide information for applicants, employees, and employers to understand their respective rights and responsibilities under Title VII.”

The updated guidance begins with a new definition of national origin discrimination: “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,” the EEOC explained, whether the employee’s national origin is real or perceived. National origin discrimination also includes discrimination by one national origin group against a member of the same group as well as discrimination based “on an individual’s, or his or her ancestor’s, place of origin.”

A “place of origin” covers a broad range of locations—it may be a country (such as China, Mexico, or even the United States), a former country (like Yugoslavia), or a geographic region that was never a country but is nevertheless closely associated with a particular national origin group (Kurdistan, for example). Title VII also prohibits discrimination against a “national origin group” or an “ethnic group” which the EEOC defined as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics,” such as Arabs or Hispanics.

Employment discrimination based on national origin may involve perception (a supervisor believes that a worker is of Middle Eastern ethnicity), association (an employee is married to an individual from Mexico and the employer discriminates against her as a result), or citizenship status. National origin discrimination often overlaps or intersects with other forms of discrimination, the EEOC noted, especially racial discrimination and religious discrimination.

One of the additions to the new guidance addressed human trafficking. “When force, fraud, or coercion is used to compel labor or exploit workers, traffickers and employers may be violating not only criminal laws, but also Title VII,” the EEOC said. “In particular, Title VII may apply in trafficking cases if an employer’s conduct is directed at an individual and/or group of individuals based on a protected category, such as national origin.”

For example, an oil industry parts manufacturer that recruits East Indian workers for its U.S. factory and promises individuals they will be well compensated and working under good conditions but then confiscates their documents and restricts their movement, communications, privacy, and worship—while placing no similar restrictions on non-Indian workers—runs afoul of human trafficking laws as well as Title VII’s prohibitions on discrimination based on race and national origin, the agency said.

Language issues are another area where national origin discrimination may come into play, according to the guidance. While employers may have legitimate business reasons for basing employment actions on linguistic characteristics, they should be careful to scrutinize their decisions to avoid tripping over Title VII, which can be violated by accent discrimination, fluency requirements, and English-only policies.

“Due to the link between accent and national origin, courts take a ‘very searching look’ at an employer’s reasons for using accent as a basis for an adverse employment decision,” the EEOC cautioned. “Courts require employers to provide evidence—as opposed to unsupported assertions—to explain such actions.”

The guidance provided several “promising practices” that may help reduce the risk of violations. With regard to recruitment, for example, the agency said that reliance on word-of-mouth recruiting “may magnify existing ethnic, racial, or religious homogeneity in a workplace and result in the exclusion of qualified applicants from different national origin groups,” encouraging employers to “use a variety of recruitment methods to attract as diverse a pool of job seekers as possible,” such as a combination of newspapers of general circulation as well as those directed at underrepresented groups in the workforce.

Employers may also wish to state they are an “equal opportunity employer,” the agency suggested.

Other ways to reduce the risk of discriminatory employment decisions: ask similar questions of all applicants when conducting job interviews to promote nondiscriminatory treatment; consider translating policies into the languages spoken by employees with limited English skills so that workers can understand and utilize the complaint process; and clearly communicate to all employees through policies and actions that a hostile work environment will not be tolerated and that employees who violate the prohibition will be disciplined.

To read the EEOC’s enforcement guidance on national origin discrimination, click here.