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Attorneys

EEOC Issues Guidance on National Origin Discrimination

November 29 2016

By Beth V. West

Perhaps because of the unfortunate social tensions arising after the U.S. Presidential election which include some inappropriate threats against immigrants and people of color, the EEOC issued its Enforcement Guidance on National Origin Discrimination last week.  The Enforcement Guidance replaces the EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination (2002).

National origin discrimination is prohibited under Title VII of the Civil Rights Act of 1964 (Title VII) which applies to employers with 15 or more employees, employment agencies, the federal government, state and local government employers, and unions. Under Title VII, discrimination in employment based on national origin, race, color, religion, and sex is illegal.  Title VII also prohibits employers from retaliating against people who oppose workplace discrimination or who participate in an EEO complaint process.

What is National Origin Discrimination?

According to the EEOC, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group.   For example:

  • An individual’s place of origin may be a country (such as Mexico), a former country (such as Yugoslavia), or a place that is closely associated with an ethnic group but is not a country (such as Kurdistan).
  • A national origin group is a group of people who share a common language, culture, ancestry, and/or other social characteristics (such as Hispanics/Latinos or Arabs).

Generally, national origin discrimination refers to:

  • Treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group;
  • Treating an employee less favorably because of the perception he or she belongs to a certain ethnic group or nationality (e.g. that the person is Hispanic/Latino even if he or she is not in fact Hispanic/Latino).
  • Using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity.
  • Treating someone less favorably at work because he or she associates with (for example, marries) someone of a particular national origin.

Harassment on the Basis of National Origin is Also Prohibited.

Title VII prohibits harassment on the basis of national origin.  Unlawful harassment is conduct that is severe or pervasive enough to create a work environment that an individual perceives as hostile, and a reasonable person would find intimidating, hostile, or abusive.   According to the EEOC, harassment 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 accent. Employer liability can result from the actions of supervisors, employees, or non-employees, such as clients, customers, or commercial contacts.

Takeaway for Employers.

Just as in the case of any other protected class, employers must take proactive steps to prevent and promptly respond to any form of discrimination or harassment on the basis of national origin.

A copy of the EEOC’s Guidance on National Origin Discrimination can be found at https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.