As we observed (here), the heated tone of the recent presidential election poses unprecedented challenges for employers attempting to manage employee interactions in the workplace, especially when issues related to immigration and national origin inevitably come up. Right on cue, on November 21, 2016, the EEOC, emphasizing the rising numbers of immigrant workers in many of the United States’ fastest-growing professions, issued updated enforcement guidance on national origin discrimination for the first time in 14 years.
As a threshold matter, the new guidance defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is or perceived to be from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” The EEOC further explains that “place of origin” may be a country, former country or a “geographic region, including a region that never was a country but nevertheless is closely associated with a particular national origin group, for example, Kurdistan or Acadia.” And, according to the EEOC, a “national origin group” or “ethnic group” is defined as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics,” such as Hispanics or Arabs. Using these definitions, the guidance outlines and describes prohibited national origin discrimination in employment decisions, as well as hostile work environment and harassment.
Furthermore, the EEOC identifies certain employee traits – such as citizenship status or an accent – which often serve as a pretext for national origin discrimination in employment decisions. Indeed, an employer may not base an employment decision on an employee’s accent unless the accent “materially interferes with job performance” which, under the law, requires an employer to show: “(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.” Less intuitively, Title VII also prohibits discrimination against employees for “perceived” national origin or their association with individuals of certain national origin.
Additionally, the EEOC warns employers not to discriminate against employees on the basis of national origin based on the discriminatory preferences of a customer or client. Nor can employers segregate employees based on customer or employee preference. And while employers need not make accommodations for a specific type of dress or holiday related to culture or national tradition, they should keep in mind that these traits are often intertwined with religion, which must be accommodated.
The new guidance also highlights potentially problematic employer policies. For example, the EEOC opines that, while employers are, of course, entitled to follow immigration laws and required to go through the I-9 process, a blanket policy of screening out new hires or candidates without a Social Security number may disproportionately impact individuals of certain national origins, such as groups of newly arrived immigrants or new lawful permanent residents. Moreover, the EEOC warns that English fluency requirements are only permissible if English fluency is truly required for effective performance of the position in question. And, in accordance with its previous guidance, the EEOC also reiterates in the new guidelines that so-called “English-Only” policies or other restrictive language policies – which require employees to exclusively speak English or other specified language in the workplace – “implicate national origin because an individual’s primary language is closely tied to his or her cultural and ethnic identity.” Such policies may violate Title VII if applied at all times, but may be lawful in limited circumstances when necessary to promote safe and efficient job performance or business operations.
Going forward, the EEOC advises employers to implement preventative measures against national origin discrimination, including: (1) using recruitment tools to ensure a diverse job applicant pool; (2) establishing objective criteria for evaluating employee performance and job applicants; and (3) translating employment policies for non-English speaking employees. Employers should also consider renewing management training efforts and reviewing their policies, especially those related to language and immigration/citizenship status, to determine whether they may run afoul of the EEOC’s new guidance.