Business Law Articles
In fiscal year 2015, approximately eleven percent of the private sector discrimination charges filed with the United States Equal Employment Opportunity Commission (“EEOC”) alleged national origin discrimination. These charges alleged a wide variety of violations of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), including claims arising from unlawful failure to hire, termination, language-related issues and harassment/hostile work environments.
On November 21, 2016, in its first update since 2002, EEOC issued its Enforcement Guidance on National Original Discrimination , what it classifies as “a sub-regulatory document that provides EEOC’s interpretation of the law on the topic.” While EEOC’s view of the state of the law is frequently broader than controlling case law, the guidance is helpful to employers in that it provides both the agency’s current position on the legal issues raised in national origin discrimination cases and a guide for how EEOC will investigate claims of alleged national original discrimination. Stated in EEOC’s own words, EEOC guidance documents “explain how federal anti-discrimination laws and regulations apply to specific workplace situations.”
The enforcement guidance initially defines national original discrimination: “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.” The place of origin may be a country, a former country, or a geographic place of origin, including a region that was never a country but nevertheless is closely associated with a particular national origin group (i.e., Kurdistan).
Title VII also prohibits employment discrimination against individuals because of their “national origin group” or “ethnic group” which is defined as “a group of people sharing a common language, culture, ancestry, race and/or other social characteristics.” Employment discrimination against an individual because he or she has physical, linguistic and/or cultural characteristics closely associated with a national origin group is an example of conduct prohibited under Title VII.
In addition to addressing broad general themes such as prohibited employment decisions (recruiting, hiring, promotion and discipline) and workplace practices related to language (accent discrimination, fluency requirements and English-only rules), EEOC also identifies “promising practices” that employers can adopt to promote equality of opportunity and reduce the risk of Title VII violations based on national origin discrimination. Among these “promising practices” are the following:
- Using a variety of recruiting methods to attract as diverse a pool of job seekers as possible. Believing that word-of-mouth recruiting “may magnify existing ethnic, racial or religious homogeneity,” EEOC recommends that employers use various recruiting tools, which may include a combination of newspapers of general circulation (including those directed at groups underrepresented in the work force), on line postings, job fairs, the public posting of job announcements with various community-based organizations, and referrals using internship and scholar programs.
- Using clearly defined criteria for hiring decisions. By doing so, EEOC believes that “managers can be confident that they are selecting the most qualified candidates, and candidates will understand how they are being evaluated.” Interviewers should ask similar questions of all job applicants and limit their inquiries to matters related to the position in question.
- Using objective, job-related criteria for discipline, demotion or discharge. Because any policy related to discipline or poor work performance will require some degree of managerial discretion, EEOC advises employers to monitor the actions of inexperienced managers and to encourage them to consult with more experienced managers when addressing difficult performance-related issues.
- Clearly communicate to all employees through policies and actions that harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined.