Monday, November 28, 2016

Takeaways from the EEOC’s New Enforcement Guidance on National Origin Discrimination

On November 18, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new, 49-page Enforcement Guidance related to national origin discrimination.  Not surprisingly, its views are broad, and employers should familiarize themselves with its positions, highlighted below, on this topic:

Definition:  national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group, and includes “perceived as” claims.  An employee’s place of origin, national origin group or ethnicity, as well as his association with someone of a particular national origin, or his citizenship status, may form the basis of a national origin discrimination claim.  While most employers think of national origin in terms of origin outside the U.S., “American” is a national origin subject to protection.
Scope of Coverage:  coverage extends to all employees and applicants for employment in the United States.  It also extends to: (1) U.S. citizens working for American employers operating in foreign countries (unless compliance with Title VII would cause the employer to violate the laws of the foreign country in which the workplace is located); (2) foreign employers doing business in the U.S. (unless the foreign employer is exempt from coverage by a treaty or international agreement); (3) U.S. citizens working abroad for a foreign employer that is controlled by an American employer; and (4) foreign nationals outside the U.S. who apply for U.S.-based employment (meaning a job in the U.S.).   
Employment Decisions:  these include recruitment, hiring, promotion, work assignments, segregation and classification, transfer, wages and benefits, leave, training and apprenticeship programs, discipline, layoffs, termination, and other terms and conditions of employment, and decisions are subject to both disparate treatment and disparate impact analyses.  Notably, the EEOC repeatedly expressed its belief that an employer’s reliance on word-of-mouth advertising to fill vacant positions may be discriminatory. 
Customer Preferences: employers cannot rely on the discriminatory preferences of coworkers, customers, or clients, and an employment decision based on the discriminatory preferences of others “is itself discriminatory.” 
Social Security Numbers:  newly hired employees should be allowed to work if they have applied for but have not yet received a Social Security number.  
Security Requirements and Screening:  in limited circumstances, primarily where an individual does not meet job requirements that are imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any federal statute or executive order, employers may justify their employment selection decisions based on national origin.  The EEOC may, however, review whether the grant, denial, or revocation of a security clearance was conducted in a discriminatory manner, and whether procedural requirements for making security clearance determinations were followed without regard to an individual’s protected status.
Hostile Work Environment:  ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed at an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent can form the basis of a hostile work environment claim. 
Accent Discrimination:  due to the link between a person’s accent and his or her national origin, employment decisions or harassment based on accent may violate Title VII.  An employment decision may legitimately be based on an individual’s accent if the accent “interferes materially with job performance.”  To meet this standard, an employer must provide evidence showing: (1) effective spoken communication in English is required to perform the job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English. 
English Fluency Requirements:  generally, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed. 
English-Only Rules and Policies:  since 1980, the EEOC has taken the position that blanket rules requiring employees to speak English in the workplace at all times are presumed to violate Title VII.  A limited language-restrictive policy, meaning one that does not apply at all times or to all jobs, workplace situations, or locations, may be permissible if the employer can establish that the policy is job related and consistent with business necessity.  To meet this burden, the employer must show that the policy is "necessary to safe and efficient job performance."
Whether this new Guidance will survive a change in administrations is uncertain, but for now, it will be cited and relied upon by the EEOC in its enforcement actions.