EEOC’S GUIDANCE CONCERNING NATIONAL ORIGIN DISCRIMINATION

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By:  Claudia D. Orr

Noting our increasingly diverse workforce, the Equal Employment Opportunity Commission issued guidance concerning national origin discrimination. It recognizes that the largest current growth is Asian and Latino, but immigration from Africa and the Caribbean continues to make America’s black population highly diverse as well. While, admittedly, the EEOC’s guidance does not always follow the interpretations of federal courts, it serves as a reference for its staff that investigates, adjudicates and litigates such claims. Therefore, employers should take heed. 

So, what is national origin discrimination under Title VII?  National origin discrimination is based on the place from which an individual or his/her ancestors come or having the “physical, cultural, or linguistic characteristics of a particular national origin group.”  It can also be based on a person’s “perceived” national origin, association with someone of a specific national origin and be the act of someone who has the same national origin.  “A ‘national origin group,’ or an ‘ethnic group,’ is a group of people sharing a common language, culture, ancestry, race and/or other social characteristics.  Hispanics, Arabs, and Roma [a traditionally nomadic group, living mostly in Europe and America that originated in the northern region of the Indian subcontinent] are ethnic or national origin groups.”

Discrimination may occur because someone is of a specific national origin or because they are not of a specific national origin. It can be based on physical, linguistic or cultural traits, like having an accent or dressing in traditional style of dress. Title VII also prohibits discrimination based on citizenship [e.g., preferring to hire US citizens] if it has the purpose or effect of discriminating based on national origin.

National origin discrimination often overlaps with discrimination based on other statuses protected under Title VII such as race, color, or religion. And, “[w]hen 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. …[I]t is not unusual for employers to subject trafficked workers to harassment, job segregation, unequal pay, or unreasonable paycheck deductions, all of which are discrimination if motivated by Title VII-protected status.”

Because discrimination applies to all aspects of employment, the EEOC addresses practices such as recruiting tools including word of mouth or advertising in only racially homogenous publications if the practice screens out minorities, security and/or criminal screenings having disparate impact on minorities, promotion decisions based on customer preference, segregating workers into certain positions, etc. 

The EEOC also recognizes that some employees, for whatever reason, may decide to not rely on a Social Security Card for I-9 verification (e.g., they have misplaced it or have not yet received it), and “newly hired employees should be allowed to work if they have applied for but not yet received a Social Security number. A policy or practice of screening out new hires or candidates who lack a Social Security number implicates Title VII if it disproportionately screens out work-authorized individuals of a certain national origin.” The guidance also addresses other citizenship issues.

The EEOC recognizes that there may be some legitimate business reasons for making decisions based on accent or English fluency, but places a fairly high burden on the employer making this argument.  For example, to make a decision based on accent, the job duties must require effective “spoken” communication in English, and the accent must materially interfere with the individual’s ability to verbally communicate in English. There is a similar test for English fluency or proficiency standards. Interestingly, the EEOC recognizes that, as the workforce becomes more diverse, employers may have a reason to require some employees to be efficient in other languages and applies the same test in that situation. Incidentally, while “English only” rules (requiring employees to only speak English in the workplace) are presumed unlawful by the EEOC, it addresses such rules in significant detail.

The guidance also discusses harassment based on national origin (by employees or non-employees), retaliation for exercising rights under Title VII, and the Act’s coverage of US citizens working in other countries. The guidance is filled with examples making it an interesting read:  https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm

National origin discrimination is on the rise and employers should be diligent in protecting the rights of all of their employees.  If you have a sticky employment situation and need to discuss it with an attorney, always contact an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further  information go to: http://www.plunkettcooney.com/people-105.html.

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