EEOC Issues Updated Guidance on National Origin Discrimination

On November 18, 2016, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance on National Origin Discrimination, intended to supersede Section 13 of its 2002 National Origin Discrimination Compliance Manual. The Guidance defines what constitutes national origin discrimination, provides employers with examples of workplace conduct that could result in enforcement action, and offers employers “promising practices” to avoid violating Title VII of the Civil Rights Act of 1964 (Title VII).

According to the EEOC, national origin discrimination charges comprised approximately 11 percent of the nearly 90,000 private sector charges filed with the agency in 2015. These charges concern a variety of Title VII violations, including unlawful failure to hire, termination, language-related issues, and harassment. Although the Guidance is not legally binding, it is instructive in understanding how the EEOC will likely interpret national origin discrimination standards and the EEOC’s enforcement and investigative priorities. The Guidance serves as a timely reminder to employers to ensure related policies and practices are in place and adhered to.

Definition of National Origin Discrimination

In relevant part, Title VII prohibits covered employers from discriminating against employees or applicants, in all phases of the employment life cycle, based on their actual or perceived national origin, their association with another person of a particular national origin, or their citizenship status. National origin discrimination means “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.” Generally such discrimination refers to both:

• Disparate treatment – treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; and
• Disparate impact – using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity.

Employment Decisions

The Guidance discusses the application of Title VII’s bar on national origin discrimination to various types of employment decisions, providing examples based on recent judicial developments.

Employment Decisions Such as Recruiting, Hiring, Disciplining, and Firing Employees: The Guidance sets forth that employers must not treat a candidate or employee differently in the recruiting, hiring, disciplining, or firing process based on his or her national origin. Additionally, employers should not use selection criteria that have a significant discriminatory effect unless the employer can demonstrate that the criteria are job related and consistent with business necessity. Moreover, employers may not rely on the discriminatory preferences of coworkers, customers, or clients as the basis for adverse employment actions in violation of Title VII. For example, a specific “corporate look” or “image” policy may serve as a proxy for discriminatory customer preference or prejudice, and, accordingly, would not justify hiring, assignment, or promotion decisions that treat individuals in a disparate manner based on their national origin.

Harassment: According to the Guidance, in fiscal year 2015, approximately 37 percent of all charges of discrimination filed alleging national origin discrimination in the private and state/local government sectors included a harassment claim. To be actionable national origin harassment, the conduct alleged, based on the totality of the circumstances, must be so severe or pervasive that it “alter[s] the conditions of the individual’s employment” by creating a hostile work environment. A hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent. Further, a hostile work environment may be created by the actions of supervisors, employees, or non-employees, such as customers or commercial contacts.

Language Issues: The Guidance explains that as the U.S. labor force has grown more ethnically diverse, the number of workers who are not native English speakers has accordingly increased. The EEOC notes that employers may have legitimate business reasons for basing employment decisions on linguistic characteristics. However, the Guidance also points out that because linguistic characteristics are closely associated with national origin, it is important to carefully scrutinize employment decisions that are based on language to ensure Title VII compliance. The Guidance provides examples of how Title VII applies to employment decisions that are based on accent, English fluency, and restrictive workplace language policies.

Accent
Due to the link between accent and national origin, the Guidance advises that courts take a “very searching look” to explain an adverse employment decision based on accent. The Guidance sets forth that an employment decision may legitimately be based on an individual’s accent only if the accent “interferes materially with job performance.” To meet this standard, an employer must provide evidence showing that: (1) effective spoken communication in English is required to perform job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English. Where there is evidence that an individual has a good command of spoken English or satisfactorily performs his job when speaking accented English, courts have generally ruled against employers.

As an example, the Guidance suggests that an employee’s accent may legitimately materially interfere with his ability to communicate effectively in a job at an airport that requires short and effective communication with disgruntled passengers that have missed connections, or whose flights have been cancelled or delayed. In contrast, an experienced retail professional who speaks with an accent, but is easy to understand, and is told to “try to speak more like an American,” may have a viable national origin discriminated claim.

Fluency Requirements
According to the Guidance, generally an English fluency or English proficiency requirement is permissible only in cases where it is required for the effective performance of the position at issue. Thus, the EEOC advises employers to assess the level of fluency required for a job on a case-by-case basis. Applying uniform fluency requirements to a broad range of dissimilar positions or requiring a greater degree of fluency than is necessary for a position may result in a violation of Title VII.

English-Only Rules and Other Restrictive Language Policies
Restrictive language policies or practices may implicate national origin because an individual’s primary language is closely tied to his or her cultural and ethnic identity. A restrictive language policy violates Title VII if it is adopted for discriminatory reasons, such as bias against employees of a particular national origin, or applied in a discriminatory manner, such as applying a policy differently to employees because of their national origin. The Guidance explains that “it would be unlawful disparate treatment to implement an English-only rule in order to avoid hearing foreign languages in the workplace, to generate a reason to discipline or terminate people who are not native English speakers, or to create a hostile work environment for certain non-English speaking workers.” Language restrictive policies are therefore unlawful unless the employer can establish that the policies are job related and consistent with business necessity, and employers must provide reasonable and adequate notice of restrictive language policies. Notably, the EEOC issued English-only guidelines in 1980 providing that rules requiring employees to speak English in the workplace at all times will be presumed to violate Title VII.

Citizenship Issues: Citizenship discrimination that has the “purpose or effect” of national origin discrimination violates Title VII. However, employers may lawfully reject individuals who are not authorized to work, or where U.S. citizenship is required by federal law.

For example, an employer that requires employees to be a U.S. citizen and produce a U.S. birth certificate in order to establish citizenship may violate of Title VII. Also, an employer that employs non-citizens in unskilled positions, but has a policy requiring higher-paid skilled workers to be U.S. citizens, likely is discriminating against employees based on national origin, unless the employer can provide a nondiscriminatory reason for the citizenship requirement.

Retaliation: Title VII prohibits retaliation against an employee for opposing national origin discrimination. For example, where an employee provides a statement supporting his co-worker’s complaint to human resources that he was discriminated against based on his Polish national origin, and subsequently is not assigned to work any overtime.

Promising Practices
Lastly, the Guidance provides employers with “promising practices” with regards to policy, training, and organizational changes. The EEOC points out that adoption of these promising practices will not insulate an employer from liability or damages for unlawful actions, but may help reduce the risk of violations. The Guidance outlines the following promising practices:

• Recruitment: The Commission recommends using a variety of recruitment methods to avoid inadvertently excluding certain national origin groups (for example, relying exclusively on word-of-mouth recruiting may result in excluding qualified applicants from different national origin groups). Employment advertisements could also state that the employer is an “equal opportunity employer.”
• Hiring, Promotion, and Assignment: Employers should establish objective, written criteria for evaluating candidates, and communicate and apply these criteria consistently to all candidates.
• Discipline, Demotion, and Discharge: Employers should develop objective, job-related criteria that identifies performance or conduct that may result in discipline, demotion, or discharge (e.g., a progressive discipline policy). If languages other than English are spoken in the workplace, the EEOC advises employers to take proactive measures to ensure that policies are communicated effectively to all employees. In addition, employers are advised to document business reasons for disciplinary or performance-related actions and to monitor the actions of inexperienced managers and encourage them to consult with more experienced managers when addressing difficult performance issues.
• Harassment: An employer’s policies and actions must clearly communicate to employees that harassment will not be tolerated and that employees who violate this prohibition will be disciplined. Employers should also institute effective and clear procedures for addressing complaints of national origin harassment. Employers are advised to consider translating policies into different languages for employees with limited English skills. Employers are also advised to train managers on policies and procedures.

In addition to the extensive enforcement guidance, the EEOC has issued additional materials for employers, including a question-and-answer document and a small business fact sheet.

Employers should ensure policies, procedures, employee notices, and corresponding training materials are in accordance with the Guidance to limit exposure and ensure compliance with Title VII.