It is likely pure coincidence that the EEOC issued its position on national origin discrimination within days of the November elections. The guidelines went into effect on November 21, 2016, modifying the EEOC's previous position on national origin discrimination, issued 15 years ago. The current guidelines are consistent with the EEOC's Strategic Enforcement Plan (SEP) for 2017-2021, which identifies the rights of immigrants as a top priority for the agency.
Given the political controversy over issues of immigration, religion and countries of origin, these guidelines will generate plenty of attention in 2017 and the years ahead. Although administrative guidelines lack the legal authority of regulations, they do serve as a reference for federal courts and provide employers with insight into the thinking of the agency. For example, the EEOC reports that nearly 40 percent of all national origin claims filed with the EEOC in 2015 included allegations of workplace harassment on that basis. To avoid unwanted attention from this federal watchdog, employers will want to familiarize themselves with the EEOC's newly articulated position as they consider national origin in the workplace.
The guidelines cover harassment, retaliation, and job segregation, in addition to discrimination. The prohibition against national origin discrimination applies in all instances where an individual (or his ancestors) is from a particular place of origin or ethnic group. A place of origin can be a country, former country, or geographic area. Ethnic groups share a common language, culture, ancestry, race and/or other social characteristic(s).
Through these new guidelines, the EEOC emphasizes that national origin discrimination often overlaps with other forms of discrimination - for example, race, religion, or gender. In addition, the EEOC points out that the law applies to an employer's discrimination based on:
1. Physical, cultural, or linguistic characteristics;
2. Perception, even if incorrect, of an employee's national origin (e.g. discrimination based on a mistaken belief that an employee or applicant is of Arab decent, or Muslim);
3. An individual's association with someone of a particular national origin (e.g., an applicant or employee married to or having a child with someone of a different national origin);
4. Citizenship status - where it has the purpose or effect of discrimination based on national origin. The EEOC notes that while employers may not lawfully hire individuals who are not authorized to work, Title VII's prohibition against national origin discrimination applies regardless of immigration status or authorization to work.
Some additional items of interest addressed in the new EEOC Guidelines, include:
· Requiring Social Security Numbers (SSN) on Form I-9 may amount to discrimination. For non-E-Verify employers, SSN are not be required for purposes of completing Form I-9, if work authorization is demonstrated and a SSN has been applied for. A policy or practice of screening out candidates who lack a SSN, may be unlawful national origin discrimination.
· English Only (or other language) Rules implicate national origin and therefore must be job related, consistent with business necessity, and narrowly tailored. Any restrictive language policy must be effectively communicated to employees in advance of enforcement (preferably in writing). The Guidelines contain several fact scenarios as examples to illustrate its position.
· National origin discrimination includes "accent discrimination". Employers who base an employment decision on an individual's accent must meet the high standard of demonstrating that accent materially interferes with job performance.
The guidelines conclude with a number of "Promising Practices" the EEOC offers to help employers reduce the risk of national origin violations.
· Employer reliance on word-of-mouth recruiting may result in the exclusion of qualified applicants from different national origin groups and a Title VII violation. To avoid inadvertently excluding some national origin groups, employers should use a variety of recruitment methods to attract as diverse a pool of job seekers as possible. An employer may also wish to state that it is an "equal opportunity employer" in job postings.
2. Hiring, promotion, and Assignment
· Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates; communicating the criteria to candidates; and applying those criteria consistently to all candidates. Appropriate objective criteria for employment decisions should be tied to business needs.
· When conducting job interviews, employers can promote nondiscriminatory treatment by asking similar questions of all applicants and by limiting their inquiries to matters related to the position in question.
· Employers are encouraged to discuss the selection process with officials tasked with making hiring decisions and hold officials accountable to ensure non-discrimination.
3. Discipline, Demotion, and Discharge
· Employers should develop objective, job-related criteria for identifying the unsatisfactory conduct that can result in discipline, demotion, or discharge. A good approach is a progressive discipline policy, which clearly communicates standards and expectations to employees and provides an opportunity to improve before discipline or discharge occurs.
· When languages other than English are spoken in the workplace, employers are advised to take proactive measures to ensure that their policies are communicated effectively to all their employees.
· Carefully recording the business reasons for disciplinary or performance-related actions and sharing these reasons with the affected employees is also a good practice.
· Employers should clearly communicate to employees, through policies and actions, that harassment will not be tolerated. Policies should be shared with all employees, including temporary and contract workers.
· Employees who are harassed should be encouraged to act at an early stage to prevent the continuation of the objectionable conduct. Effective and clearly communicated procedures for addressing complaints of national origin harassment are important. Employers also may train managers on how to identify and respond effectively to harassment.
In addition to the official guidance, the EEOC has also issued two short user-friendly resource documents: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language. To read all 54 pages of the EEOC's Guidance in their entirety, click here.
For more information, contact Attorney Jim Sherman in our Minneapolis office at (952) 746-1700 or by email at [email protected].