Changing Demographics, The EEOC, and National Origin Discrimination

What Is 'National Origin' Discrimination?

The EEOC defines national origin discrimination broadly to include “the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.” A “national origin group” is often referred to as an “ethnic” group that shares a common language, culture, ancestry, and/or other similar social characteristics. Taking an employment action, including adopting more restrictive policies for certain ethnic groups or unevenly enforcing policies, based on these characteristics, or the perception of such characteristics, is prohibited under Title VII.

National origin discrimination may also intersect with other protected bases, including racial or religious discrimination. Notably, where an individual raises intersecting national origin and religious discrimination claims, the employer's responsibilities under Title VII are different for each. For the religious discrimination claim, unlike the national origin discrimination claim, an employer must modify workplace policies that conflict with religious practices unless doing so would result in a more than de minimis hardship to the operation of the employer's business.'

National origin claims may be brought under both disparate treatment and disparate impact theories of discrimination. Disparate treatment discrimination occurs when an individual's national origin is a motivating factor in how he or she is treated. Disparate impact discrimination occurs when a neutral policy or practice has a significant negative impact on one or more protected groups based on national origin, and either the policy or practice is not job-related and consistent with business necessity or there is a less discriminatory alternative that the employer refused to adopt.

Where no direct evidence of discriminatory animus exists, the McDonnell Douglas burden-shifting method of proof used in disparate treatment cases applies. (See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). For disparate treatment claims, the plaintiffs bear the initial burden of establishing a prima facie case of discrimination, shifting the burden to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. If the employer successfully articulates such a reason, the plaintiff retains the ultimate burden of showing that the employer's reason was pretext.

In a disparate impact claim, to establish a prima facie case, the complaining party must demonstrate that an employer used a particular practice that caused a disparate impact based on a protected basis. The employer would then have to demonstrate that the challenged practice is job-related and consistent with business necessity. If the employer successfully meets that burden, the plaintiff would have the opportunity to show that a less discriminatory alternative was available and that the employer refused to use it. When proceeding under a disparate impact theory, proof of discriminatory intent is not required.

English-Only and Other Language-Related Claims

As a corollary to the national origin discrimination theory, cases have been brought challenging English-only policies. However, despite Title VII's statutory language, the EEOC views English-only rules as presumptively discriminatory, and policies that apply only at certain times in the workplace must be justified by business necessity to be permissible. The EEOC's position seemingly indicates that the agency will apply disparate impact principles even if the underlying case is a disparate treatment case to reap the benefits for plaintiffs of the disparate impact method of proof.'

In the current Compliance Manual, English-only policies are “justified by 'business necessity' if needed to operate safely or efficiently” such as for communications with customers, coworkers, or supervisors who speak only in English, in emergency situations, for cooperative work assignments, and to allow a supervisor to monitor an employee's performance whose job duties include communicating with others.”

While the EEOC maintains that an English-only rule presumptively violates Title VII, many courts have determined that such a position contravenes Title VII's plain language. In Garcia v. Spun Steak, 998 F.2d 1480 (1993), the Ninth Circuit reasoned that under the Guidelines, “an employee meets the prima facie case in a disparate impact cause of action merely by proving the existence of an English-only policy.” The Spun Steak court rejected this presumption as contrary to Title VII's requirement that a plaintiff “prove the alleged discriminatory effect before the burden shifts to the employer.” Several courts have followed Spun Steak in rejecting the EEOC's presumption of discrimination.

Other courts, however, have endorsed the EEOC's presumption. In EEOC v. Synchro-Start Prods., Inc., 29 F.Supp.2d 911 (N.D. Ill. 1999), the court denied the employer's motion to dismiss a class claim alleging disparate impact based on an English-only policy applicable “during work hours” because, in part, of the EEOC Guidelines. In EEOC v. Premier Operator Services, 113 F. Supp. 2d 1066 (N.D. Tex. 2000), the court found that adopting a broad English-only policy applicable at all times inside the company building violated Title VII, noting the policy's broad applicability and the “code-switching” phenomenon where individuals who speak two languages subconsciously switch between them.

Regardless of how courts have interpreted the EEOC's Guidelines, nothing will apparently stop the EEOC from conducting a long and expensive investigation into an employer's English-only policy. For employers who wish to implement an English-only policy or other language-related policy, it should conduct a fact-intensive analysis and narrowly tailor the applicability as to the where, when and to which positions that the policy applies. Employers should also review the business justifications for having such a policy and be prepared to defend it should the EEOC investigate the policy.'

Harassment Claims Based on National Origin

Another priority area for the EEOC is national origin harassment, which violates Title VII when the conduct is unwelcome and so severe or pervasive that it alters the terms and conditions of employment both subjectively for the victim and objectively from the perspective of a reasonable person in the alleged victim's place. While Title VII is not a general civility code, abusive conduct does not have to rise to the level of economic or psychological harm to trigger liability. Each case must be analyzed on a case-by-case basis, and courts will look to the context, severity, and frequency of the conduct, whether it unreasonably interfered with the employee's work performance, and how the employer responded to the alleged harassment.

Specific to national origin discrimination, harassment may include ethnic slurs, workplace graffiti, or other offensive conduct. Generally, an employer will be liable for a supervisor's conduct unless the employer exercised reasonable care to prevent and promptly correct any harassing behavior and the employee unreasonably failed to take advantage of the employer's preventative or corrective measures.

In recent years, the EEOC has filed several cases alleging national origin (non-sexual) harassment claims. In 2010, the EEOC sued JBS Swift & Company alleging that, on an intersectional discrimination basis, the company both created a hostile work environment and failed to reasonably accommodate prayer requirements for its Somali and Muslim employees due to their race, national origin, and religion. There, tensions rose between Hispanic and Muslim employees represented by the same union regarding prayer break schedules during Ramadan. The complaint alleged that Hispanic employees regularly threw blood, meat, and bones at the Somali and Muslim employees. Ultimately, the court rejected the EEOC's failure to accommodate religious discrimination claim because the company established that moving break times would cause an undue hardship, but the hostile work environment claim remains pending.

In late 2011, the EEOC sued Mesa Systems for national origin discrimination, alleging that the employer maintained an overly restrictive English-only policy, and that Hispanic warehouse employees were subjected to a hostile work environment filled with racial slurs and retaliation. In September 2013, the parties settled the matter for $450,000, rescission of the English-only policy, and no admission of liability.

Conclusion

While cold comfort to responsible employers attempting to comply with Title VII and the EEOC's guidance on many topics, the EEOC's guidance remains just that ' guidance, which represents not the law, but the EEOC's view of the law. Indeed, in 2013 alone, the Supreme Court rejected the EEOC's subregulatory guidance positions in two major decisions. In Vance v. Ball State University, 133 S. Ct. 2434 (2013), the Supreme Court rejected the EEOC's definition of “supervisor” and held that an employee is a supervisor only where the employer has empowered the employee “to take tangible employment actions against the employee” rather than the EEOC's more expansive definition, which included an individual with authority to direct an employee's daily work activities as a supervisor. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the Supreme Court strictly interpreted Title VII, holding that retaliation claims are subject to the “but for” causation standard, rejecting the EEOC's view that the motivating factor standard applied to retaliation claims.

It is unclear whether the EEOC will update its national origin guidance. Several other issues may be more pressing for the Commissioners, including how wellness plans interact with the Americans with Disabilities Act, whether reasonable accommodations are available to all pregnant employees under the Pregnancy Discrimination Act regardless of disability status, and the potential for updated guidance regarding the Americans with Disabilities Act and credit-related background checks. Updated guidance on any of these issues would likely provide more context for the regulated community, but may ultimately make it more easier for plaintiffs to establish discrimination, and more difficult for employers to comply with the EEOC's view of the laws that it enforces.

Paul Kehoe is senior counsel in the Washington, DC, office of Seyfarth Shaw LLP, where he is a member of the Labor & Employment practice group. Kehoe, a former attorney adviser to the Hon. Victoria A. Lipnic, Commissioner at the Equal Employment Opportunity Commission, Kehoe focuses his practice on all aspects of employment discrimination law. He can be reached at [email protected].'

Amidst a workforce characterized by rapidly changing demographics, employers and employees are faced with many challenges, including providing a workplace free from harassment and discrimination. Based on the 2010 Census, 40 million foreign-born individuals live in the United States, and account for 12.9% of the total population. A decade ago, those figures were 31.1 million and 11.1% respectively, and in 1990, 19.8 million and 7.9% respectively. In addition, almost 20.7% of the population over 5 years old speaks a language other than English at home, and of these, 62% speak Spanish or Spanish Creole. A decade ago, those numbers were 17.9% and 59.8%, respectively.

These demographic shifts play out across the country in all aspects of life, but in particular, in the workplace. Recent data published by the Equal Employment Opportunity Commission (EEOC) indicates that filings alleging national origin discrimination have increased from 8,327 in fiscal year 2005 to 10,883 in fiscal year 2012, though as a total percentage of claims filed, they have remained relatively stable between 11%-12% over that period.

In part based on these demographic changes and increased charge filings, the EEOC included “Protecting Immigrant, Migrant and Other Vulnerable Workers” as a priority in its December 2012 Strategic Enforcement Plan. In addition to filing litigation alleging national origin discrimination, the EEOC held a public meeting on Nov. 13, 2013 to hear testimony regarding whether, and how, it should update its Compliance Manual chapter, which discusses national origin discrimination. The EEOC last updated this section in December 2002 following the 9/11 attacks. The meeting largely focused on language-related issues, including English-only policies, fluency requirements, and accent-related claims. A secondary emphasis focused on national origin harassment claims. The Commissioners heard testimony from advocates and management representatives alike to discuss the many challenges in today's workplace related to national origin discrimination. While it is unclear whether the EEOC will revise its national origin guidance, generally speaking, an initial step for such changes is to hold a public meeting to solicit views from the regulated community.

What Is 'National Origin' Discrimination?

The EEOC defines national origin discrimination broadly to include “the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.” A “national origin group” is often referred to as an “ethnic” group that shares a common language, culture, ancestry, and/or other similar social characteristics. Taking an employment action, including adopting more restrictive policies for certain ethnic groups or unevenly enforcing policies, based on these characteristics, or the perception of such characteristics, is prohibited under Title VII.

National origin discrimination may also intersect with other protected bases, including racial or religious discrimination. Notably, where an individual raises intersecting national origin and religious discrimination claims, the employer's responsibilities under Title VII are different for each. For the religious discrimination claim, unlike the national origin discrimination claim, an employer must modify workplace policies that conflict with religious practices unless doing so would result in a more than de minimis hardship to the operation of the employer's business.'

National origin claims may be brought under both disparate treatment and disparate impact theories of discrimination. Disparate treatment discrimination occurs when an individual's national origin is a motivating factor in how he or she is treated. Disparate impact discrimination occurs when a neutral policy or practice has a significant negative impact on one or more protected groups based on national origin, and either the policy or practice is not job-related and consistent with business necessity or there is a less discriminatory alternative that the employer refused to adopt.

Where no direct evidence of discriminatory animus exists, the McDonnell Douglas burden-shifting method of proof used in disparate treatment cases applies. ( See McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)). For disparate treatment claims, the plaintiffs bear the initial burden of establishing a prima facie case of discrimination, shifting the burden to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. If the employer successfully articulates such a reason, the plaintiff retains the ultimate burden of showing that the employer's reason was pretext.

In a disparate impact claim, to establish a prima facie case, the complaining party must demonstrate that an employer used a particular practice that caused a disparate impact based on a protected basis. The employer would then have to demonstrate that the challenged practice is job-related and consistent with business necessity. If the employer successfully meets that burden, the plaintiff would have the opportunity to show that a less discriminatory alternative was available and that the employer refused to use it. When proceeding under a disparate impact theory, proof of discriminatory intent is not required.

English-Only and Other Language-Related Claims

As a corollary to the national origin discrimination theory, cases have been brought challenging English-only policies. However, despite Title VII's statutory language, the EEOC views English-only rules as presumptively discriminatory, and policies that apply only at certain times in the workplace must be justified by business necessity to be permissible. The EEOC's position seemingly indicates that the agency will apply disparate impact principles even if the underlying case is a disparate treatment case to reap the benefits for plaintiffs of the disparate impact method of proof.'

In the current Compliance Manual, English-only policies are “justified by 'business necessity' if needed to operate safely or efficiently” such as for communications with customers, coworkers, or supervisors who speak only in English, in emergency situations, for cooperative work assignments, and to allow a supervisor to monitor an employee's performance whose job duties include communicating with others.”

While the EEOC maintains that an English-only rule presumptively violates Title VII, many courts have determined that such a position contravenes Title VII's plain language. In Garcia v. Spun Steak , 998 F.2d 1480 (1993), the Ninth Circuit reasoned that under the Guidelines, “an employee meets the prima facie case in a disparate impact cause of action merely by proving the existence of an English-only policy.” The Spun Steak court rejected this presumption as contrary to Title VII's requirement that a plaintiff “prove the alleged discriminatory effect before the burden shifts to the employer.” Several courts have followed Spun Steak in rejecting the EEOC's presumption of discrimination.

Other courts, however, have endorsed the EEOC's presumption. In EEOC v. Synchro-Start Prods., Inc. , 29 F.Supp.2d 911 (N.D. Ill. 1999), the court denied the employer's motion to dismiss a class claim alleging disparate impact based on an English-only policy applicable “during work hours” because, in part, of the EEOC Guidelines. In EEOC v. Premier Operator Services , 113 F. Supp. 2d 1066 (N.D. Tex. 2000), the court found that adopting a broad English-only policy applicable at all times inside the company building violated Title VII, noting the policy's broad applicability and the “code-switching” phenomenon where individuals who speak two languages subconsciously switch between them.

Regardless of how courts have interpreted the EEOC's Guidelines, nothing will apparently stop the EEOC from conducting a long and expensive investigation into an employer's English-only policy. For employers who wish to implement an English-only policy or other language-related policy, it should conduct a fact-intensive analysis and narrowly tailor the applicability as to the where, when and to which positions that the policy applies. Employers should also review the business justifications for having such a policy and be prepared to defend it should the EEOC investigate the policy.'

Harassment Claims Based on National Origin

Another priority area for the EEOC is national origin harassment, which violates Title VII when the conduct is unwelcome and so severe or pervasive that it alters the terms and conditions of employment both subjectively for the victim and objectively from the perspective of a reasonable person in the alleged victim's place. While Title VII is not a general civility code, abusive conduct does not have to rise to the level of economic or psychological harm to trigger liability. Each case must be analyzed on a case-by-case basis, and courts will look to the context, severity, and frequency of the conduct, whether it unreasonably interfered with the employee's work performance, and how the employer responded to the alleged harassment.

Specific to national origin discrimination, harassment may include ethnic slurs, workplace graffiti, or other offensive conduct. Generally, an employer will be liable for a supervisor's conduct unless the employer exercised reasonable care to prevent and promptly correct any harassing behavior and the employee unreasonably failed to take advantage of the employer's preventative or corrective measures.

In recent years, the EEOC has filed several cases alleging national origin (non-sexual) harassment claims. In 2010, the EEOC sued JBS Swift & Company alleging that, on an intersectional discrimination basis, the company both created a hostile work environment and failed to reasonably accommodate prayer requirements for its Somali and Muslim employees due to their race, national origin, and religion. There, tensions rose between Hispanic and Muslim employees represented by the same union regarding prayer break schedules during Ramadan. The complaint alleged that Hispanic employees regularly threw blood, meat, and bones at the Somali and Muslim employees. Ultimately, the court rejected the EEOC's failure to accommodate religious discrimination claim because the company established that moving break times would cause an undue hardship, but the hostile work environment claim remains pending.

In late 2011, the EEOC sued Mesa Systems for national origin discrimination, alleging that the employer maintained an overly restrictive English-only policy, and that Hispanic warehouse employees were subjected to a hostile work environment filled with racial slurs and retaliation. In September 2013, the parties settled the matter for $450,000, rescission of the English-only policy, and no admission of liability.

Conclusion

While cold comfort to responsible employers attempting to comply with Title VII and the EEOC's guidance on many topics, the EEOC's guidance remains just that ' guidance, which represents not the law, but the EEOC's view of the law. Indeed, in 2013 alone, the Supreme Court rejected the EEOC's subregulatory guidance positions in two major decisions. In Vance v. Ball State University , 133 S. Ct. 2434 (2013), the Supreme Court rejected the EEOC's definition of “supervisor” and held that an employee is a supervisor only where the employer has empowered the employee “to take tangible employment actions against the employee” rather than the EEOC's more expansive definition, which included an individual with authority to direct an employee's daily work activities as a supervisor. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the Supreme Court strictly interpreted Title VII, holding that retaliation claims are subject to the “but for” causation standard, rejecting the EEOC's view that the motivating factor standard applied to retaliation claims.

It is unclear whether the EEOC will update its national origin guidance. Several other issues may be more pressing for the Commissioners, including how wellness plans interact with the Americans with Disabilities Act, whether reasonable accommodations are available to all pregnant employees under the Pregnancy Discrimination Act regardless of disability status, and the potential for updated guidance regarding the Americans with Disabilities Act and credit-related background checks. Updated guidance on any of these issues would likely provide more context for the regulated community, but may ultimately make it more easier for plaintiffs to establish discrimination, and more difficult for employers to comply with the EEOC's view of the laws that it enforces.

Paul Kehoe is senior counsel in the Washington, DC, office of Seyfarth Shaw LLP, where he is a member of the Labor & Employment practice group. Kehoe, a former attorney adviser to the Hon. Victoria A. Lipnic, Commissioner at the Equal Employment Opportunity Commission, Kehoe focuses his practice on all aspects of employment discrimination law. He can be reached at [email protected].'