EEOC Updates Guidance on National Origin Discrimination

According to the Guidance, national origin discrimination is discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural or language characteristics of a national origin (ethnic) group. A national origin group is a group of people who share a common language, culture, ancestry and/or other social characteristics (such as Hispanics/Latinos or Arabs). National origin does not refer to citizenship or immigration status.

The Guidance makes clear that Title VII protects every employee or applicant against discrimination based on his or her national origin, including Americans. Title VII also protects employees or applicants who are perceived to be of one ethnicity or nationality, but in truth are not. For instance, treating an employee less favorably because you believe he or she is Hispanic/Latino is national origin discrimination, even if that person is not actually Hispanic or Latino. Similarly, employees or applicants who associate with someone of a particular nationality or ethnicity are also protected. This type of claim is akin to an associational disability discrimination claim, i.e., the employee argues he was discriminated against because he is connected to an individual with a disability. In the national origin context, this means an employer cannot treat an applicant or employee less favorably because he, for example, marries someone of a particular national origin.

Unlawful harassment is conduct that is severe or pervasive enough to create a hostile work environment that an individual perceives as hostile and a reasonable person would find intimidating, hostile or abusive. Title VII prohibits such harassment on the basis of national origin. This is not new, but it is an express statement of what we have known for years.

The Guidance explains that national origin discrimination may appear in many forms, such as 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 accent.

Often, one of the most difficult and delicate issues employers face is addressing discriminatory customer preferences. The Guidance, however, reminds employers that they may not rely on the discriminatory preferences of coworkers, customers or clients as the basis for adverse employment actions. Simply put, an employment decision based on the discriminatory preferences of others is discriminatory. The Guidance provides the example of a “corporate look” or “image policy” that may serve as a proxy for discriminatory customer preference or prejudice. For example, a customer may not demand that only Caucasian employees participate in front-of-the-house jobs — and justify the restriction based on a mandated corporate image.

The Guidance also provides clarity on a practical issue many employers face language proficiency. As the makeup of the United States labor force continues to become more ethnically diverse, employers often hire workers who are not native English speakers. This presents its own set of challenges. The Guidance makes clear employers may have legitimate business reasons for basing employment decisions on linguistic characteristics, however, employers should carefully scrutinize these decisions.

For example, the Guidance breaks down language issues into three categories: 1) accent discrimination; 2) fluency requirements; and 3) English-only rules.

Accents are closely tied to a person's location of upbringing. Therefore, national origin discrimination is implicated. The Guidance provides an employer may take an employee's accent into account when: 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. Employers should not consider an employee's accent when he or she has a good command of the English language and performs his or her job satisfactorily with accented English. For example, the Guidance states that a busy airline customer service representative who speaks English with a Filipino accent may be denied promotion if the accent interferes with the disgruntled passenger's ability to understand him or her.

As for English fluency, the Guidance states that a job-by-job analysis must be conducted. Requiring English fluency is only permitted if it is needed for effective performance for the position. For instance, English fluency may be required for a senior grant writer, but not a research assistant. In the quick-service restaurant industry, a command of English may be required for a cashier, but not a lobby person or someone who works the grill.

English-only rules are another issue. Since the 1980s, the EEOC has taken the position that policies requiring employees only to speak English in the workplace violate Title VII. Employers, however, may adopt narrowly tailored policies that apply in limited circumstances when demanded by business necessity. The definition of “necessity” is rather narrow. For example, requiring English only, in order to stop employee conflicts (between non-English speakers and all others) will generally not pass muster. Therefore, employers should contact labor and employment counsel before putting this type of policy to use.

The Guidance finally includes a two-page summary entitled “Promising Practices,” which the EEOC defines as practices employers may wish to consider implementing because they may reduce the risk of violations. However, the EEOC notes that “adopting these practices does not insulate an employer from liability or damages for unlawful actions.” Some of the most interesting “promising practices” are:

• Using a variety of recruitment tools to attract a diverse pool of jobseekers, rather than relying on “word-of-mouth” recruiting;
• Advertising that an employer is an “equal opportunity employer” and notifying applicants of any language qualifications with other job-related qualifications;
• Establishing objective written criteria for making employment decisions related to the employer's business needs, and communicating those criteria to managers and other decision-makers to ensure they are uniformly applied;
• Developing objective, job-related criteria for identifying unsatisfactory conduct that could result in discipline, demotion or discharge and implementing a progressive discipline policy aimed at correcting any employee misconduct;
• Documenting accurately the business reasons for disciplinary or performance-related actions and communicating those reasons with the employee; and
• Clearly communicating the company's strict prohibition against discrimination and harassment with all employees, including temporary and contract workers, and effectively and clearly communicating procedures for reporting harassment. Employers should use these promising practices to revise their own anti-discrimination policies regarding national origin discrimination.

Conclusion

Taking these proactive steps will help avoid national origin discrimination and serve as the foundation for a good defense in the event a claim arises or an EEOC charge is filed.

*****
Robert G. Brody is the founding member of Brody and Associates, a labor and employment law firm. Katherine M. Bogard is an associate at the firm. This article also appeared in The Connecticut Law Journal, an ALM sibling publication of this newsletter.

At the end of last year, the Equal Employment Opportunity Commission (EEOC) for the first time in 14 years updated its Guidance on national origin discrimination. The Guidance serves as a road map for employers on how the EEOC will investigate national origin discrimination charges. As a result, employers are wise to review the new Guidance to ensure that their anti-discrimination policies can withstand an EEOC investigation.

Title VII of the Civil Rights Act of 1964, in part, protects against national origin discrimination for all employees and applicants for employment in the United States, regardless of their place of birth, authorization to work in the United States, citizenship or immigration status.

Equal Employment Opportunity Commission

According to the Guidance, national origin discrimination is discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural or language characteristics of a national origin (ethnic) group. A national origin group is a group of people who share a common language, culture, ancestry and/or other social characteristics (such as Hispanics/Latinos or Arabs). National origin does not refer to citizenship or immigration status.

The Guidance makes clear that Title VII protects every employee or applicant against discrimination based on his or her national origin, including Americans. Title VII also protects employees or applicants who are perceived to be of one ethnicity or nationality, but in truth are not. For instance, treating an employee less favorably because you believe he or she is Hispanic/Latino is national origin discrimination, even if that person is not actually Hispanic or Latino. Similarly, employees or applicants who associate with someone of a particular nationality or ethnicity are also protected. This type of claim is akin to an associational disability discrimination claim, i.e., the employee argues he was discriminated against because he is connected to an individual with a disability. In the national origin context, this means an employer cannot treat an applicant or employee less favorably because he, for example, marries someone of a particular national origin.

Unlawful harassment is conduct that is severe or pervasive enough to create a hostile work environment that an individual perceives as hostile and a reasonable person would find intimidating, hostile or abusive. Title VII prohibits such harassment on the basis of national origin. This is not new, but it is an express statement of what we have known for years.

The Guidance explains that national origin discrimination may appear in many forms, such as 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 accent.

Often, one of the most difficult and delicate issues employers face is addressing discriminatory customer preferences. The Guidance, however, reminds employers that they may not rely on the discriminatory preferences of coworkers, customers or clients as the basis for adverse employment actions. Simply put, an employment decision based on the discriminatory preferences of others is discriminatory. The Guidance provides the example of a “corporate look” or “image policy” that may serve as a proxy for discriminatory customer preference or prejudice. For example, a customer may not demand that only Caucasian employees participate in front-of-the-house jobs — and justify the restriction based on a mandated corporate image.

The Guidance also provides clarity on a practical issue many employers face language proficiency. As the makeup of the United States labor force continues to become more ethnically diverse, employers often hire workers who are not native English speakers. This presents its own set of challenges. The Guidance makes clear employers may have legitimate business reasons for basing employment decisions on linguistic characteristics, however, employers should carefully scrutinize these decisions.

For example, the Guidance breaks down language issues into three categories: 1) accent discrimination; 2) fluency requirements; and 3) English-only rules.

Accents are closely tied to a person's location of upbringing. Therefore, national origin discrimination is implicated. The Guidance provides an employer may take an employee's accent into account when: 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. Employers should not consider an employee's accent when he or she has a good command of the English language and performs his or her job satisfactorily with accented English. For example, the Guidance states that a busy airline customer service representative who speaks English with a Filipino accent may be denied promotion if the accent interferes with the disgruntled passenger's ability to understand him or her.

As for English fluency, the Guidance states that a job-by-job analysis must be conducted. Requiring English fluency is only permitted if it is needed for effective performance for the position. For instance, English fluency may be required for a senior grant writer, but not a research assistant. In the quick-service restaurant industry, a command of English may be required for a cashier, but not a lobby person or someone who works the grill.

English-only rules are another issue. Since the 1980s, the EEOC has taken the position that policies requiring employees only to speak English in the workplace violate Title VII. Employers, however, may adopt narrowly tailored policies that apply in limited circumstances when demanded by business necessity. The definition of “necessity” is rather narrow. For example, requiring English only, in order to stop employee conflicts (between non-English speakers and all others) will generally not pass muster. Therefore, employers should contact labor and employment counsel before putting this type of policy to use.

The Guidance finally includes a two-page summary entitled “Promising Practices,” which the EEOC defines as practices employers may wish to consider implementing because they may reduce the risk of violations. However, the EEOC notes that “adopting these practices does not insulate an employer from liability or damages for unlawful actions.” Some of the most interesting “promising practices” are:

• Using a variety of recruitment tools to attract a diverse pool of jobseekers, rather than relying on “word-of-mouth” recruiting;
• Advertising that an employer is an “equal opportunity employer” and notifying applicants of any language qualifications with other job-related qualifications;
• Establishing objective written criteria for making employment decisions related to the employer's business needs, and communicating those criteria to managers and other decision-makers to ensure they are uniformly applied;
• Developing objective, job-related criteria for identifying unsatisfactory conduct that could result in discipline, demotion or discharge and implementing a progressive discipline policy aimed at correcting any employee misconduct;
• Documenting accurately the business reasons for disciplinary or performance-related actions and communicating those reasons with the employee; and
• Clearly communicating the company's strict prohibition against discrimination and harassment with all employees, including temporary and contract workers, and effectively and clearly communicating procedures for reporting harassment. Employers should use these promising practices to revise their own anti-discrimination policies regarding national origin discrimination.

Conclusion

Taking these proactive steps will help avoid national origin discrimination and serve as the foundation for a good defense in the event a claim arises or an EEOC charge is filed.

*****
Robert G. Brody is the founding member of Brody and Associates, a labor and employment law firm. Katherine M. Bogard is an associate at the firm. This article also appeared in The Connecticut Law Journal, an ALM sibling publication of this newsletter.