By: Vida L. Thomas
On June 2, 2016, the Equal Employment Opportunity Commission (“EEOC”) released a proposed guidance on national origin discrimination under Title VII, and is seeking public input. Title VII prohibits employment discrimination against applicants and employees because of their national origin, because they are from a particular country or part of the world, or because of actual or apparent ethnicity. The EEOC publishes guidance documents to explain its enforcement position to employers and employees, and to explain how the law pertains to specific workplace scenarios.
The agency last published guidance on this topic in 2002. Since that time, it has received a steady stream of national origin complaints. In fiscal year 2015, approximately 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination. These charges alleged a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues, and harassment. On top of that, the legal landscape in this area has evolved, including new developments in the areas of human trafficking, job segregation and intersectional discrimination. All of these factors led the EEOC to conclude that a revised guidance on national origin discrimination was necessary. The following are some of the key provisions of the proposed guidance.
The proposed guidance also points out that employers that use the labor of human trafficking victims may violate not only criminal laws, but Title VII as well. Employers may subject these workers to harassment, job segregation, unequal pay, or unreasonable paycheck deductions, all of which are discriminatory if motivated by the workers’ national origin or ethnicity. Also, because victims of human trafficking are engaging in compelled labor, the work environment may reasonably be perceived as hostile, leading to liability for unlawful harassment.
The proposed guidance also provides that employers may not rely on the discriminatory customer preferences of coworkers, customers, or clients to justify discriminatory employment practices. Employers who demand that their workers have a specific “corporate look” or “all-American image” are cautioned that these standards cannot serve as a proxy for discriminatory customer preference or prejudice. So, for example, an employer cannot refuse to hire an Arab American individual because it believes the individual looks “foreign,” and fears negative customer perceptions. Similarly, an employer may not force all Filipino employees into jobs away from the public because of an actual or assumed customer preference for non-Filipino employees.
The EEOC cautions that while employers may have legitimate reasons for basing employment decisions on linguistic characteristics, because linguistic characteristics are closely associated with national origin, employers should tread carefully in this area. The proposed guidance explains that Title VII also may restrict employment decisions that are based on accent and English fluency. It explains that an employment decision may legitimately be based on an individual’s accent if the accent “interferes materially with job performance.” An English fluency will be permissible under Title VII only if it is necessary for the effective performance of the position.
Title VII applies regardless of an individual’s immigration status, and regardless of whether the individual is legally authorized to work in the United States. Generally speaking, refusing to hire someone merely because he or she is not a U.S. citizen constitutes unlawful national origin discrimination under Title VII. However, the proposed guidance recognizes that employers are permitted to ensure that they do not hire individuals who are not authorized to work in the U.S. Moreover, when U.S. citizenship is required by federal law, it is not a violation of Title VII to refuse to hire an individual because he or she is not a U.S. citizen.
The proposed guidance addresses the types of adverse action that could support a claim of retaliation. It also discusses Title VII’s application to foreign employers and American employers in foreign countries. To better assist employers, it contains examples of “promising practices” employers can adopt to reduce risk in the areas of recruitment; hiring, promotion and assignment; discipline, demotion, and discharge; and harassment.
The 30-day input period ends on July 1, 2016. You can find the draft guidance at https://www.regulations.gov/#!documentDetail;D=EEOC-2016-0004-0001 After considering the public input it receives, the EEOC will publish a final guidance, which will replace the existing EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination.