EEOC Issues First Update on National Origin Discrimination Since 2002

In its first update in 14 years, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on National Origin Discrimination (“Enforcement Guidance”) on November 21, 2016, replacing its 2002 Compliance Manual on National Origin Discrimination. With input from approximately 20 organizations and individuals, the Enforcement Guidance addresses important legal developments over the past 14 years on national origin issues ranging from employment decisions and workplace harassment to human trafficking.

Title VII protects individuals from employment discrimination and retaliation based on their color, race, sex, religion or national origin. The EEOC last comprehensively addressed national origin discrimination in 2002, focusing primarily on “English-only” rules. The Enforcement Guidance now highlights the broad definition of national origin discrimination: “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”

The Enforcement Guidance also discusses national origin discrimination in a variety of different employment scenarios: employment decisions; harassment, including human trafficking to language (accent discrimination; fluency requirements; English-only rules; and restrictive language policies) and citizenship.

Notably, the Enforcement Guidance culminates with “promising practices” that employers are advised to adopt to promote equality in the workplace:

  • Recruitment. Use “a variety of recruitment methods to attract as diverse a pool of job seekers as possible”. The EEOC provides the following examples: a combination of newspapers of general circulation, as well as those directed at groups underrepresented in the workforce, and online postings; job fairs and open houses; publicly posting job announcements with a variety of community-based organizations as well as widely-distributed sources; conducting outreach through professional associations and search firms.
  • Hiring, Promotion and Assignment. Establish “written objective criteria for evaluating candidates; communicating the criteria to prospective candidates; and applying those criteria consistently to all candidates.” When conducting job interviews, ask similar questions of all applicants and limit inquiries to matters related to the position in question.
  • Discipline, Demotion, and Discharge. Develop “objective, job-related criteria for identifying the unsatisfactory performance or conduct that can result in discipline, demotion, or discharge.” When languages other than English are spoken in the workplace, employers are advised to take proactive measures to ensure that their policies are communicated effectively to all their employees; carefully record the business reasons for disciplinary or performance-related actions and share these reasons with the affected employees.
  • Harassment. Clearly communicate to employees through policies and actions that “harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined.” Share the policy with all employees, including temporary and contract workers. Consider translating policies into the languages spoken by employees with limited English skills, conduct trainings on the policies in these languages, and provide interpreters or other language assistance to ensure that employees can report harassment confidentially. The increased cultural diversity of today’s workplaces presents new and evolving issues with respect to Title VII’s protection against national origin discrimination. In fiscal year 2015, 11% of charges filed with the EEOC alleged national origin discrimination. With this new Enforcement Guidance, employers have a window into the eyes of the EEOC as it investigates national origin discrimination claims. Though following these suggestions may reduce the risk of Title VII national origin discrimination violations, they are not guaranteed to insulate employers from liability.
  • In addition to the Enforcement Guidance, the EEOC also issued two short user-friendly resource documents, Questions and Answers and a small business fact sheet, which highlight the major points in the guidance.