A Look at the EEOC’s Latest Guidance on National OriginOn January 13, 2017 by Schnader in Labor and Employment
By Rachel A.H. Horton
The U.S. Equal Employment Opportunity Commission has issued new guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964. The enforcement guidance is significantly more detailed than the last iteration of this guidance published in 2002. Although the overarching legal framework of Title VII has not changed much, the EEOC stakes out a number of new positions, which are highlighted here.
Title VII prohibits employers from discriminating against employees because of their real or perceived national origin. National origin is, in turn, a broad concept that includes the place where an individual or her ancestors are from as well as her physical, cultural, and linguistic characteristics. The EEOC has expanded this definition by making it clear that:
- Employers may not discriminate against employees because they are associated with (for example, has a child with) a person of a different national origin.
- A member of a particular national origin is capable of discriminating against someone of the same national origin.
- Employment discrimination based on citizenship status is unlawful if it has the purpose or effect of discriminating based on national origin.
- Title VII prohibits employers from engaging in “intersectional” discrimination, which is discrimination that targets a specific subgroup of employees, such as African men.
In terms of hiring practices, the EEOC now cautions against imposing a policy that screens out applicants who lack a social security number. Such a practice may have a disparate impact on new lawful permanent residents.
Some of the most significant changes relate to harassment, which was asserted in 37 percent of national origin discrimination claims filed in fiscal year 2015. The EEOC now notes that when a supervisor engages in harassment that includes a tangible employment action, such as firing, the employer is not entitled to assert a defense based on the employee’s failure to take advantage of the employer’s reporting system. Thus, an employer may be deprived of an otherwise-valid defense based on its corrective procedures where one of its supervisors repeatedly mocked a Russian employee’s accent and decided to demote that employee based on his national origin.
The EEOC also added guidance that focuses on human trafficking and discriminatory employment practices that adversely impact workers who have been illegally smuggled into the country. For example, the EEOC explains that it would be actionable retaliation for an employer to threaten to report to the government that its workers are undocumented if the workers participate in an EEO investigation. Similarly, the EEOC notes that compelled labor goes hand-in-hand with a hostile work environment and states that working under the threat of deportation is a factor in determining whether an employer is liable for national origin discrimination.
The guidance ends with a new list of “promising practices” that the EEOC encourages employers to consider implementing to help guard against national origin discrimination. These suggestions include translating policies into the languages spoken by employees and establishing written objective criteria, which are tied to business need, for evaluating applicants and employees.