The EEOC recently proposed enforcement guidance on national origin discrimination and is giving the public until July 1, 2016 to comment. Once issued, this guidance will assist EEOC staff in investigation of national origin discrimination charges and provide information to prospective employees, employees, and employers so that they may understand their rights and responsibilities under Title VII.
Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from employment discrimination based on a number of classifications, including national origin. “Generally, national origin discrimination means 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. Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.”
In describing types of prohibited discrimination, the proposed guidance gives a number of examples of national origin discrimination:
- Ethnicity: Discrimination against someone because he is Hispanic or less favorable treatment of someone who is not
- Physical, linguistic, or cultural traits: Discrimination based on an individual’s African-sounding accent or traditional African style of dress.
- Perception: Discrimination based on the perception that someone is from Middle Eastern countries or is of Arab ethnicity, regardless of whether she is, in fact, from the Middle East or ethnically Arab.
- Association: Discrimination against a person because he is married to or has a child by someone of a different national origin or ethnicity.
- Citizenship status: Discrimination based on a person’s citizenship status if it has the purpose or effect of discriminating based on national origin. You can, however, make decisions based on an individual’s authorization to work legally in the United States.
The EEOC reminds us that discriminating against someone because he or she is Native American or a member of a particular tribe is also national origin discrimination and that English-only policies are presumptively illegal. Finally, the proposed guidance gives examples of “intersectional discrimination”—discrimination based on two different classifications—and notes that employer could be found to discriminate against Asian women even if it has not discriminated against Asian men or non-Asian women.
In addition to providing guidance of what constitutes national origin discrimination, the guidelines also suggest “promising practices” that employers may wish to adopt to promote equality and reduce the risk of Title VII violations based on national origin discrimination. The suggested practices include: recruiting by a wide variety of methods; establishing written objective criteria for evaluating candidates for hire, promotion, or assignment; developing objective, job-related criteria for identifying unsatisfactory performance or conduct that could result in discipline, demotion or discharge; and clearly communicating to employees that harassment will not be tolerated.
After reviewing the public comments on this proposed guidance, the Commission may revise the guidelines before finalizing them. Therefore, employers should look for the final guidelines after July 2016 and consider revising employment practices to conform with the EEOC’s guidelines to avoid potential national origin discrimination claims.