On November 21, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC last comprehensively addressed national origin discrimination in 2002, and the revised guidance addresses important issues and significant legal developments that have occurred since that time. The final guidance replaces the existing EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination issued in December 2002. The revised guidance discusses Title VII's prohibition on national origin discrimination as applied to a wide variety of employment situations, and includes several employer suggestions that may reduce the risk of national origin discrimination claims.
The final enforcement guidance, which reflects the EEOC's consideration of feedback from approximately 20 organizations and individuals, sets forth the EEOC’s interpretation as to national origin discrimination and retaliation laws. Although the Commission’s view of the state of the law is oftentimes significantly broader than controlling case law, the enforcement guidance is helpful to employers and their counsel because it provides the government’s current position and does precisely what the document is called: a guide for how the Commission will investigate claims of alleged national origin discrimination.
National Origin Discrimination in General
Title VII protects individuals from employment discrimination and retaliation based on their race, color, religion, sex, or national origin. Title VII prohibits employers from treating individuals unfavorably because of their national origin, including because they are from a particular country or part of the world, because of ethnicity, or because they appear to be of a certain ethnic background. As approximately 11% of the 89,385 private sector charges filed with the EEOC in FY 2015 allege national origin discrimination, the EEOC aims to express official agency policy and explain how the laws and regulations apply to specific workplace situations involving national origin discrimination.
The enforcement guidance starts out by defining and explaining “national origin” discrimination. Generally, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a particular country 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, and national origin discrimination includes discrimination by a member of one national origin group against a member of the same group.
The enforcement guidance also addresses broad general issues concerning employment decisions (recruitment, hiring, promotion, discipline) and harassment (hostile work environment, employer liability, human trafficking). The enforcement guidance also addresses workplace issues relating to different languages (accent discrimination, fluency requirements, English-only rules) and citizenship, and it provides updates about court decisions addressing job segregation, human trafficking, and intersectional discrimination. Employers might have legitimate business reasons for basing employment decisions on linguistic characteristics, but because linguistic characteristics are closely associated with national origin, it is important to scrutinize carefully employment decisions that are based on language to ensure that they do not violate Title VII.
The EEOC also suggests “promising practices” that employers may adopt to promote equality of opportunity and to reduce the risk of Title VII violations based on national origin discrimination. Although adopting these practices does not insulate an employer from liability or damages for unlawful actions, the EEOC believes that a meaningful implementation of these steps may help reduce the risk of violations, even where they are not legal requirements.
- Use a variety of recruitment methods to attract as diverse a pool of job seekers as possible. Such recruitment tools may include a combination of newspapers of general circulation, and those directed at groups underrepresented in the workforce, and online postings; job fairs and open houses; publicly posting job announcements with many community-based organizations and widely-distributed sources; conducting outreach through professional associations and search firms; recruiting from internship and scholar programs; and referrals using in-person connections.
- State that the employer is an “equal opportunity employer.” Draft employment advertisements to notify prospective applicants of all qualifications, including any qualifications related to language ability.
- Have clearly defined criteria for employment decisions. Employers can reduce the risk of discriminatory employment decisions, including hiring, promotion, and assignment decisions, by establishing written objective criteria for evaluating candidates; communicating the criteria to prospective candidates; and applying those criteria consistently to all candidates. Objective criteria for employment decisions will be tied to business needs, and help ensure that all individuals are given an equal opportunity when being considered for open positions, assignments, and promotions.
- Develop objective, job-related criteria for identifying the unsatisfactory performance or conduct that can cause discipline, demotion, or discharge. One common approach for addressing misconduct is to implement a progressive discipline policy directed at correcting employee misconduct. Such a policy would clearly communicate conduct standards and performance expectations to employees and provide employees with the opportunity to improve their performance before progressive discipline or discharge occurs.
- Carefully record the business reasons for disciplinary or performance-related actions and share these reasons with the affected employees. Because any policy related to discipline or poor work performance will require exercise of managerial discretion, employers are advised to monitor the actions of inexperienced managers and encourage them to consult with more experienced managers when addressing difficult performance issues.
- Clearly communicate to employees through policies and actions that harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined. Harassment and other policies should be shared with all employees, including temporary and contract workers. In addition, effective and clearly-communicated procedures for addressing complaints of national origin harassment are important. Employers should also consider training managers on how to identify and respond effectively to harassment, including the importance of proactively addressing conduct that does not initially violate Title VII but may, over time, rise to the level of actionable harassment.
- Ensure that policies are communicated effectively to all the employees. Translate the policies into, and offer training in, the languages spoken by employees.
The EEOC has also issued two short, user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language.