The U.S. Equal Employment Opportunity Commission (EEOC) has released a Proposed Enforcement Guidance on National Origin Discrimination under Title VII of the Civil Rights Act of 1964. The EEOC will take public comments on the proposed guidance until July 1, 2016.
The EEOC has not formally addressed national origin discrimination since 2002. Since that time, claims of Title VII violations based on national origin have increased. In 2015, approximately 11 percent of the 89,385 private sector charges filed with the EEOC alleged national origin discrimination.
The proposed guidance broadly addresses discrimination in hiring, recruiting, discipline, and harassment, as well as language-related issues. Importantly, the guidance also sets forth the following points that may be new to some employers:
- “National origin” often interlaps with race, color, religion, or ancestry (think “Hispanic,” “Asian,” “Arab,” “Native American”). The same set of facts therefore may state claims alleging several bases of discrimination.
- National origin discrimination includes discrimination against American workers in favor of foreign workers.
- Employees should be allowed to work if they have applied for but have not yet received a Social Security Number, unless having a Social Security Number is necessary for business purposes.
- Employers may not segregate an ethnic group of workers from other workers, for example, by putting them in a back office.
- Discrimination based on a worker’s heavy accent may not violate Title VII if it materially affects the individual’s job performance.
- “English-only” rules may be appropriate if the rules are necessary for business and limited to accomplish a job-related goal. For example, an English-only rule may be necessary for customer service or workplace safety.
- Staffing agencies may be held jointly liable for national origin discrimination with a primary employer.
- In addition to being a criminal violation, human trafficking for labor constitutes national origin discrimination.
After the public comment period ends, the EEOC will finalize the guidance. Comments may be submitted online at www.regulations.gov or by hard copy to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.