On Nov. 21, 2016, the United States Equal Employment Opportunity Commission (EEOC) issued updated enforcement guidance on national origin discrimination for the first time in 14 years. Some may speculate whether this has anything to do with increased ethnic tensions in the wake of the presidential campaign and election results. Some also recognize that in 2015 alone, approximately 11 percent of the 89,385 private sector charges filed with the EEOC alleged national origin discrimination, claiming a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues and harassment. Regardless of the reasoning, its issuance may have widespread implications for employers who fail to vigorously enforce their anti-discrimination and harassment policies.
Among other things, the EEOC’s lengthy guidance addresses topics such as the definition of national origin discrimination, related unlawful employment decisions, related harassment, language-related issues and citizenship status. It offers various examples of what is lawful versus unlawful among these various topics, and also provides guidance to employers with regard to permissible practices.
So, what is national origin discrimination? According to the new guidance, it is “discrimination because an individual (or his or her ancestors) is or perceived to be from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” In unpacking that definition, the EEOC explains that a “certain place” may mean a country, like Russia, a former country, like Yugoslavia, or somewhere that is associated with an ethnic group, but is not a country, like Tibet. Furthermore, a “national origin group” is a “group of people who share a common language, culture, ancestry, and/or other social characteristics,” like Hispanics. Importantly, the EEOC noted that it is possible for someone from the same ethnic or national origin group to discriminate against or harass someone in his or her same group. Likewise, it is also possible for an American to suffer national origin discrimination. Further, one may also suffer from discrimination based on his or her association with a person of a particular national origin.
What constitutes national origin discrimination varies as it relates to various types of employment decisions, including recruitment, hiring, promotion, work assignments, segregation/classification, transfer, wages and benefits, leaves of absence, training, discipline, layoff, termination, and other terms and conditions of employment – all of which is discussed in the new guidance. In addition, the guidance provides some clarity with regard to various language-related workplace issues, such as accent discrimination, fluency requirements and English-only rules.
And, of course, the guidance discusses national origin harassment in great detail. As with other harassment protected by Title VII, in order to be protected, a claimant must allege that the harassment is severe and pervasive enough for the claimant to find it offensive and that a reasonable person may find it intimidating or abusive. This could mean use of ethnic slurs, ridicule, intimidation, drawings, physical violence or other offensive conduct based on a person’s birthplace, ethnicity, culture, language, dress or accent (the EEOC’s guidance gives the example of calling a Pakistani man a “camel jockey,” “the local terrorist” and the “ayatollah,” and embarrassing him in front of customers).
The EEOC has also declared certain practices to not be discriminatory or harassing. For instance, employers are permitted to have a language fluency requirement, provided it is required for the effective performance of the position. Following the I-9 process also is not discriminatory, provided it is applied to all applicants in the same manner and does not have a discriminatory effect (e.g., filtering out applicants who do not have Social Security numbers). Also, some jokes and insults surrounding national origin alone may not rise to the level of harassment, such as calling a foreign-born person “lazy,” mocking his or her accent, or commenting on how foreigners are stealing American jobs. This is not to say, however, that such jokes or insults should be encouraged, or even tolerated, in the workplace.
It is important that employers understand this new guidance and make prevention of discrimination and harassment their top priority – even if their clients or customers disagree with a certain ethnic group. In fact, the EEOC makes clear that discrimination based on clients’ preferences is still discrimination in violation of the law. As a reminder, an important defense against discrimination and harassment claims as an employer is to have clear anti-discrimination and harassment policies, which are disseminated to all employees and which are enforced.