In November 2016, the EEOC issued a new Guidance on national origin discrimination. In announcing the proposed Guidance, EEOC Chair Jenny Yang said, “The EEOC has identified immigrant, migrant, and other vulnerable populations as a national strategic priority.” The new Guidance also includes Native American, or tribe members, in the national origin definition.
All United States companies with fifteen or more employees must comply with Title VII. American employers that operate internationally must comply with Title VII unless doing so would violate the laws of the nation in which they’re operating. Also, Title VII applies to a foreign employer doing business in the United States to the same extent as an American employer, unless the foreign employer is exempted from coverage by a treaty or international agreement.
The new Guidance provides new language about what is considered discriminatory and offers practices that employers can take to minimize the risk of national origin discrimination.
What Is Considered Discriminatory?
National origin discrimination can be based: (1) on a person’s place of origin, which may be a country, a former country, or a region; or (2) on a person’s national origin or ethnicity, which means a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.
The EEOC also interprets employment discrimination as being based on perceived national origin. For example, the Guidance notes that illegal employment discrimination may be based on the belief that someone is from the Middle East or is of Arab ethnicity, regardless of how an employee identifies herself or whether she is, in fact, from a Middle Eastern country. It is also illegal to refuse to hire someone because you perceive that he or she follows certain religious practices, whether the person actually does or not.
In addition, the EEOC prohibits discrimination against an individual because of his association with someone of a particular national origin; for example, discriminating against an employee or applicant because that person is married to or has a child with someone of a different national origin or ethnicity.
An employment decision made based on the discriminatory preferences of customers, clients, or employees is considered discrimination on the employer’s part.The new Guidance states that employers cannot rely on preferences expressed by coworkers, customers, or clients as a basis for employment decisions that are impermissibly based on national origin. An employment decision made based on the discriminatory preferences of customers, clients, or employees is considered discrimination on the employer’s part.
English fluency or English proficiency requirements are still permissible only if required for the effective performance of the position; in other words, justified by business necessity.
The new Guidance states that separating employees by a protected characteristic – such as having employees of one ethic group work in the back room while other employees deal with customers – is discriminatory.
Lastly, the new Guidance explains that a "hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent."
Actions Employers Can Take
The new Guidance provides a number of actions that employers can take to minimize the risk of committing national origin discrimination in the workplace.
- Use a variety of recruitment methods, as opposed to word-of-mouth recruiting, to attract a diverse pool of job applicants. Advertising or sending job offers only to members of certain ethnically or racially homogeneous areas or audiences could be discriminatory if the purpose is to exclude a protected group from applying. And, if a staffing agency that you use discriminates against workers, and you suspect it’s happening, you could be held liable along with the staffing agency for its discriminatory practices.
Further, the EEOC said that screening out new hires or job candidates because they lack a Social Security number, but are otherwise “work-authorized,” may be illegal if it disproportionately impacts individuals of a certain ethnicity or national origin. According to both the U.S. Citizenship and Immigration Services and the Social Security Administration, newly hired employees should be allowed to work if they have applied for, but not yet received a Social Security number. The new Guidance protects individuals regardless of their immigration status.
- Establish written objective criteria for evaluating candidates for hire or promotion, communicate the criteria to prospective candidates, and apply those criteria consistently.
- Develop objective, job-related criteria for identifying unsatisfactory performance or conduct that can result in discipline, demotion, or discharge and translating policies into, and offer training in, the languages spoken by employees.
- Clearly communicate to employees that harassment will not be tolerated, explain that any employee who violates harassment policies will be disciplined, and provide training on anti-harassment policies and procedures to employees.