On November 21, 2016 the Equal Employment Opportunity Commission (EEOC or Commission) issued new enforcement guidance on national origin discrimination. See https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm. The EEOC is updating a section of its Compliance Manual first drafted in 2002, largely in response to an increase in religious and national origin discrimination claims after the 9/11 attacks.
The new Guidance comes at a time of heightened awareness of issues regarding immigration and refugee assistance efforts. And, of course, the recently concluded and contentious presidential campaign and election results may have had something to do with it. The EEOC received 9,438 national origin discrimination charges in fiscal 2015, about 11 percent of the total charges it received that year.
The Guidance runs over 50 pages, but the EEOC has also published a “question and answer” document and a small business “fact sheet” to make its views easier to understand. See https://www.eeoc.gov/laws/guidance/national-origin-qa.cfm and https://www.eeoc.gov/laws/guidance/national-origin-factsheet.cfm.
The Guidance comes after the EEOC issued a proposal for public input in June. Approximately 20 organizations and individuals provided comments. The result, says the agency, is that “[t]his document sets forth the Commission’s interpretation of the law of national origin discrimination. In crafting this guidance, the Commission analyzed how courts have interpreted and applied the law to specific facts. Regarding many national origin discrimination issues, the lower courts are uniform in their interpretations of the relevant statutes. This guidance explains the law on such issues with concrete examples, where the Commission agrees with those interpretations. Where the lower courts have not consistently applied the law or the EEOC’s interpretation of the law differs in some respect, this guidance sets forth the EEOC’s considered position and explains its analysis.”
One area in which the Guidance offers clarity is with the Commission’s expansive definition of “national origin.” Obviously, the term prohibits discrimination based on an individual’s nation of origin. Courts have long agreed that it also applies to discrimination because of an individual’s (or his or her ancestors’) physical, cultural, or linguistic characteristics of a particular national origin group. Things have sometimes gotten pesky, however, when the issue is discrimination based not on a particular nationality, but ethnicity: complaints of mistreatment because someone is Arab or Hispanic for example, rather than a more specific reference to being Saudi or Mexican.
The Guidance confirms the EEOC’s intended broad application of the term, stating that “[n]ational origin discrimination includes discrimination ‘because of an individual’s, or his or her ancestor’s, place of origin.’ The place of origin may be a country (e.g., Mexico, China, Syria) or a former country (e.g., Yugoslavia). The place of origin may be the United States. Finally, it may be a geographic region, including a region that never was a country but nevertheless is closely associated with a particular national origin group, for example, Kurdistan or Acadia.”
The Guidance continues, stating that “Title VII also prohibits employment discrimination against individuals because of their national origin group. A ‘national origin group,’ or an ‘ethnic group,’ is a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics. Hispanics, Arabs, and Roma are ethnic or national origin groups.”
The Guidance also offers 35 different factual vignettes to help explain its views. For example, two vignettes explain that the issue of English fluency (a long recognized national origin discrimination topic) remains a serious Commission concern, with the following comparison:
No Discrimination: Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in an overwhelmingly English-speaking, non-bilingual community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers who only speak English is limited. Under these circumstances, XYZ’s decision to exclude Jorge from the sales position does not violate Title VII.
Discrimination: Ender, whose first language is Turkish, works at Hotel’s Registration and Concierge Desk. Hotel serves a largely English-speaking clientele. At the Concierge Desk, Ender provides local directions to restaurants, museums, theaters, and other destinations and otherwise helps guests plan their visits.
A guest complains that Ender gave him directions to a business appointment “in broken English.” The guest, who was late for the appointment, demands that Hotel management remove Ender from the Concierge Desk. Two supervisors observe Ender at work. They conclude that he speaks English quickly, clearly, and precisely, albeit with a Turkish accent. They also find Ender’s local directions to be accurate. The supervisors recommend against taking action against Ender. However, upper management decides to terminate Ender’s employment and replace him with a native English speaker, because the guest who complained works for a company that is an established client of Hotel.
Under these circumstances, there is reasonable cause to believe that Hotel’s decision to terminate Ender was motivated by his national origin and violates Title VII. The Hotel’s supervisors specifically found that Ender’s accent did not affect his ability to communicate information accurately, and he was terminated to appease the preferences of an unhappy client. Where client preference is based on a protected basis such as national origin, the employment decision violates Title VII.
Employers are well advised to become familiar with the new Guidance, as there is an expectation that the EEOC will see an increase in these claims in the coming years.