Lost in the tumult of the overtime rules injunction was the Equal Employment Opportunity Commission’s (EEOC) issuance of an updated enforcement guidance on National Origin Discrimination on November 21.
Not updated since 2002, the guidance offers a number of important insights into how the EEOC intends to handle national origin discrimination cases, which now account for 11% of all charges filed with the EEOC. Given EEOC’s expanding definition of the phrase “National Origin”, that number may increase dramatically.
What is National Origin?
The guidance defines “National Origin” quite broadly, noting that discrimination on this basis might arise because of where the person (or that person’s ancestors), is from, or because the person has “the physical, cultural, or linguistic characteristics of a particular national origin group.” The place where the person is from can be a country, a former country or a geographic region. National origin can also refer to a “national origin group,” or an “ethnic group,”, which EEOC says is a group of people with a “common language, culture, ancestry, race, and/or other social characteristics.” EEOC offered the examples of “Hispanics” or “Arabs” as national origin groups.
The guidance particularly points out that national origin discrimination also encompasses differential treatment based on the fact that a person is not from a particular ethnic group (e.g. adverse treatment because a person is not Hispanic). It also includes adverse action based on the fact that an individual is perceived to be (but is not actually) of a particular national origin, as well as discrimination based on a person’s association with others of a particular origin.
Accent, Fluency and “English Only” Policies
The new guidance explains that employment decisions based on accent or fluency in English must be job-related and consistent with business necessity. An employer must be prepared to prove that a strong accent or lack of fluency in English materially interferes with the person’s job performance. “Blanket” rules requiring that English (or perhaps some other language) be spoken at all times in the work place will be considered presumptively unlawful and the more restrictive the policy, the greater the likelihood that the EEOC will find that is it not a business necessity.
The guidance also addresses a wide range of interesting, related topics, such as the relationship between human trafficking and harassment, intersectional discrimination (discrimination based on the combination of two or more protected classes, e.g., adverse treatment of Asian females but not Asian males), citizenship issues and customer/co-worker preferences to work in specific groups based on national origin.
“Promising Practices”
The EEOC is reluctant to identify “best” practices because they view each workplace as unique. Instead, as they have done previously, they offer a list of “Promising Practices” in regard to national origin discrimination. They largely consist of standard recommendations for good human resources practices, such as:
– Use a variety of recruitment methods to attract as diverse a pool of job seekers as possible.
– Establish written objective criteria for evaluating candidates, and apply those criteria consistently .
– Use fair and corrective progressive discipline policies .
– Ensure effective communication of policies, including translation of policies into the languages spoken by employees.
– Clearly communicate to employees that harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined.
Although not exactly ground-breaking insights, the Promising Practices are nevertheless helpful reminders.
The new guidance is accompanied by a small business fact sheet and an FAQ.
Bottom Line
Our bruising presidential campaign generated some raw feelings in regard to national origin-related issues. Although much of that may fade, we anticipate that there will be heightened emphasis on national origin in the months ahead and that some of that emphasis will find its way into the work place.
The EEOC guidance may prove to be a useful resource in determining employer’s rights and obligations in this arena.