For the first time since 2002, the Equal Employment Opportunity Commission (EEOC) has updated its guidance on national origin discrimination in the workplace in an effort to address important legal developments over the past 14 years. In 2015, the EEOC reported 11 percent of the charges filed alleged national origin discrimination. The EEOC’s recent Strategic Enforcement Plan for 2017-2021 includes protecting immigrant and migrant workers from discrimination as a top substantive priority, and this guidance is another step toward increasing the EEOC’s enforcement efforts in this area. Of course, with the election of President-elect Donald Trump last month, the EEOC’s guidance is subject to change. However, the guidance is a useful tool to analyze employers’ existing policies and practices of preventing national origin discrimination with an eye toward the EEOC’s focus for enforcement action.

National origin discrimination is prohibited under Title VII of the Civil Rights Act of 1964 and includes 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’s new guidance focuses on national origin discrimination in the workplace in four main categories:

  1. recruitment;
  2. hiring, promotion and assignment;
  3. discipline, demotion and discharge; and
  4. harassment.

Recruitment

Recruitment practices with the purpose of discriminating based on national origin or disproportionately limiting employment opportunities based on national origin are prohibited under Title VII, unless job-related and based on business necessity. The EEOC guidance describes common situations in which national origin discrimination may arise. For example, smaller employers who require new employees to know or be sponsored by an existing employee or who use only word-of-mouth recruiting can disproportionately exclude diverse applicants. Staffing and contract firms also must be aware that they cannot comply with an employer’s request to refer only applicants of a certain national origin. Staffing and contract firms can face direct liability in such instances as a “joint employer” depending upon the circumstances of the relationship with the hiring employer. To avoid discriminatory recruitment practices, the EEOC recommends advertising and recruiting in various ways to attract a diverse pool of applicants such as online postings, job fairs, referrals, publicly posting job announcements at different community organizations, etc.

Hiring, Promotion and Assignment

Under Title VII, employers cannot treat job applicants differently during the hiring process based on national origin or limit assignments and opportunities to be promoted for current employees. For instance, a company cannot use customer preference (see staffing agency discussion above) or corporate image as a basis for discriminatory action. This includes making decisions on which employees will be “the face of the company” to customers based on an employee’s appearance or accent. Instead, the EEOC advises employers to develop a set of objective criteria for evaluating employees in each position within a company, and applying those criteria consistently to applicants and employees.

Discipline, Demotion and Discharge

As with all protected categories under Title VII, an employer’s decision to discipline, demote or discharge an employee must be based on nondiscriminatory reasons such as quality or quantity of work, rather than national origin, race or any other protected category, and customer preferences or prejudices should in no way impact these decisions. Again, developing a set of objective job-related criteria for identifying performance or conduct that may result in discipline, is a good practice to avoid discriminatory employment decisions. The EEOC encourages employers to develop progressive disciplinary policies which communicate work performance and conduct expectations clearly and which provide employees with an opportunity to correct performance or conduct deficiencies before they are disciplined or discharged. Well documented disciplinary actions with explanations of the business reasons for such actions are also helpful to avoid the appearance of discriminatory action. Human Resources departments can review this documentation to ensure that supervisors and managers are addressing disciplinary issues consistently within a company.

Harassment

National origin harassment is prohibited when it is so severe or pervasive that it alters the conditions of an individual’s employment and creates a hostile or abusive work environment. Examples of national origin harassment in the workplace provided in the new guidance include ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or any other offensive conduct directed toward an individual based on his or her birthplace, ethnicity, culture, language, dress or foreign accent. Employers can be liable for unlawful harassment by supervisors and by non-supervisory employees or non-employees in certain circumstances. Therefore, it is critical that employers clearly and frequently communicate their anti-harassment policy to employees, and that they preserve the integrity of the policy by taking complaints seriously and disciplining any employee who engages in conduct that violates the policy. It is also important to train employees on the procedures for reporting harassment and to train managers on how to address harassment complaints.

The other two areas of focus in the EEOC’s new guidance are language and citizenship issues. Language issues in the workplace have become increasingly prevalent due to the larger numbers of non-native English speakers entering the U.S. workforce. Under Title VII, an employment decision can only be based on an employee’s accent if the accent materially interferes with job performance. Similarly, English fluency or proficiency requirements are only permissible where required for an individual to effectively perform the job. The EEOC provides the example that an individual may be sufficiently proficient in English to work as a research assistant, but not fluent enough to be a senior scientific writer who communicates complex scientific information in the English language.

English-only policies are not new, but have become increasingly more popular with the influx of multi-lingual workers into the workforce. The EEOC’s long-standing position is that English-only policies requiring employees to speak English at all times in the workplace are presumed to violate Title VII. However, tailored restrictive-language policies that are applicable only at certain times or places are not unlawful if an employer can establish job-relatedness and business necessity. To meet this burden, an employer must present detailed, fact-specific and credible evidence showing the policy is necessary to safe and efficient job performance or safe and efficient business operations. For instance, in the case of Montes v. Vail Clinic, Inc., 497 F.3d 1160 (10th Cir. 2007), the U.S. Court of Appeals for the Tenth Circuit upheld a hospital’s English-only policy which applied to all workers during job-related discussions in the operating room. A Spanish and English speaking housekeeper filed a charge of discrimination based on national origin discrimination, but the court found that clear and precise communication between medical staff and cleaning staff in the operating room is essential for the patients’ health and safety, and the policy was upheld.

With regard to citizenship requirements, Title VII prohibits U.S. citizenship requirements if the requirements are a pretext for national origin discrimination or if it is part of a wider scheme of national origin discrimination. However, if federal law requires U.S. citizenship, then failure to hire an applicant who is not a U.S. citizen will not violate Title VII. Employers should remain mindful that Title VII applies regardless of immigration status or authorization to work, and foreign nationals are protected. For instance, the guidance provides that if an employer knowingly hires a group of undocumented workers and one of those workers complains about sexual harassment in the workplace, the employer cannot threaten to report (or actually report) the employee’s immigration status to government authorities to keep the employee from asserting rights under Title VII or in retaliation for the employee’s having done so. The employer cannot use the workers’ undocumented status as a defense.