Hunton Employment & Labor Perspectives

On November 21, 2016, the EEOC announced the release of new enforcement guidance addressing national origin discrimination.   Like many enforcement initiatives of late, the update is intended to address current cultural issues and legal developments.  It updates an EEOC compliance manual section from 2002 (Volume II, Section 13: National Origin Discrimination).  The EEOC also issued a small business fact sheet and a Q-and-A document.

For employers who have been following court decisions in this area, the guidance may not convey much new information.  But, it makes clear the agency’s position in a number of areas that may continue to present workplace challenges under Donald Trump’s administration.  Among other things, the guidance confirms:

• Title VII’s ban on national origin discrimination includes discrimination based on the perception that someone has a particular national origin. For instance, treating an employee less favorably because he/she is perceived to be from the Middle East would be discriminatory, even if the person does not descend from that region.
• “Associational” discrimination is also covered. A person may not be discriminated against because he/she associates with people of a particular national origin.
• The ban on national origin bias extends to recruiting practices, including those with an unintentional disparate impact. The EEOC cautions against “word of mouth” recruiting, which can perpetuate the hire of certain groups, and encourages using a diversity of recruiting sources (something the OFCCP has long emphasized).
• An employer may not discriminate to satisfy the requests or preferences of clients, customers, or employees.
• There is no accommodation obligation for national origin practices. However, they often go hand-in-hand with religious observances, which do have an accommodation obligation under Title VII.

Language issues are also a key component of the guidance.   Employers may have valid reasons for imposing language requirements, but the EEOC’s position is:

• Decisions should not be based on an accent unless the ability to communicate in spoken English is required to perform job duties effectively (which should be specified in the job description) and the individual’s accent materially interferes with that job performance.
• A language fluency requirement is permitted if fluency is required for the effective performance of the position for which it is imposed (again, this should be specified in a written job description).
• A language-restrictive policy should not be applied at all times in a workplace (including break time, meals, etc.). However, it may be lawful in some instances if needed to promote safe and efficient job performance or safe and efficient business operations, and if not adopted for discriminatory reasons or applied in a discriminatory way.

The guidance also addresses human trafficking, another form of national origin discrimination  and “intersectional” discrimination, which is when national origin bias occurs with other types of unlawful bias (religion, sex, race, etc.)

The EEOC stresses the importance of preventative measure by employers, particularly when it comes to harassment based on protected traits.  This builds off a June 2016 report issued by the EEOC, which studied workplace harassment in depth and provides best practice suggestions to employers.