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Not From Around Here? The EEOC Issues Guidelines for National Origin Discrimination at Work

The United States is commonly referred to as the melting pot of the world – welcoming people from many different countries who are hoping to find freedom and chase the American dream. Unfortunately, not everyone in the United States welcomes those from other countries with open arms.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on national origin. In more specific terms, as the press release underscores, Title VII “prohibits employer actions that treat people unfavorably because of their national origin, including because they are from a particular country or part of the world, because of ethnicity, or because they appear to be of a certain ethnic background.”

For the first time since 2002, the EEOC is revisiting its guidelines on national origin discrimination, recognizing that there have been “significant legal developments addressing national origin discrimination,” since it was addressed over ten (10) years ago, including job segregation, human trafficking, and intersectional discrimination. In June 2016, the Equal Employment Opportunity Commission (EEOC) released a draft of its new proposed enforcement guidance regarding national origin discrimination under Title VII. The guidance is still in draft form, but gives insights as to the EEOC concerns and present issues regarding national original discrimination.

Clarifying Examples of National Origin Discrimination

One of the key features of the proposed guidance is clarifying what employment discrimination against members of a national group can include. The draft guidance provides a number of examples, including the following:

  • Ethnicity: discrimination based on a person’s ethnicity, such as discriminating against someone because she or he is Hispanic, or, alternatively, because s/he is not
  • Physical, linguistic, or cultural traits: discriminating against someone because of his/her “discrete physical, linguistic, and/or cultural characteristics closely associated with a national origin group.” For instance, if a person has an accent that results from coming from an African country, or if someone is discriminated against because s/he wears traditional African clothing.
  • Perception: national origin discrimination is not simply based on an individual’s confirmed national origin, but rather this form of discrimination can also be based on a person’s belief that an individual is of a particular national origin. As the draft explains, “Title VII prohibits employment discrimination based on the perception that someone is from Middle Eastern countries or is of Arab ethnicity, regardless of how she identifies herself or whether she is, in fact, from one or more Middle Eastern countries or ethnically Arab.”

The EEOC Draft Guidance also underscores prohibited employment practices as they relate to national origin discrimination:

  • Employers are barred from employing recruitment practices that exclude people based on national origin. Moreover, employers cannot have a staffing company engage in discriminatory practices for them – such as requesting that a staffing company only refer employees of a particular ethnic group.
  • Employers cannot discriminate against candidates in decisions regarding hiring, promotion, and job assignments based on national origin. An excuse that it is customer or client preference will not suffice to justify such discriminatory actions.
  • Employers must apply rules regarding discipline, demotion, and discharge uniformly.
  • Employers must use caution in language requirements in the workplace. For an example, an English-only rule may contribute to a hostile work environment and can be violation of law if adopted for a discriminatory reason or applied in a discriminatory manner. The EEOC clarifies that “English-only rules that apply at all times – including lunch, breaks, and personal time – are presumptively unlawful. To be lawful, English-only (or other restrictive language) rules must be job-related and consistent with a business necessity.”
  • A US citizenship requirement for employees is unlawful when it’s purpose is to discriminate against individuals based on national origin, unless required for certain positions by federal law.

While these proposed guidelines are not yet final,  the fact that EEOC has undertaken the task to re-issue guidelines on this area of the law highlights the importance of awareness of issues of national origin discrimination in the workplace. If you have been the victim of national origin discrimination at work, you may be able to file a Charge of Discrimination with the EEOC. For information about your rights and responsibilities under the law, it is important to speak with an employment discrimination attorney. Contact Scott • Wagner and Associates today.

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* Cathleen Scott is licensed to practice in Florida only.

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