EEOC Issues Enforcement Guidance On National Original Discrimination
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In fiscal year 2015, approximately eleven percent of the private sector discrimination charges filed with the United States Equal Employment Opportunity Commission (“EEOC”) alleged national origin discrimination. These charges alleged a wide variety of violations of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), including claims arising from unlawful failure to hire, termination, language-related issues and harassment/hostile work environments.
On November 21, 2016, in its first update since 2002, EEOC issued its Enforcement Guidance on National Original Discrimination , what it classifies as “a sub-regulatory document that provides EEOC’s interpretation of the law on the topic.” While EEOC’s view of the state of the law is frequently broader than controlling case law, the guidance is helpful to employers in that it provides both the agency’s current position on the legal issues raised in national origin discrimination cases and a guide for how EEOC will investigate claims of alleged national original discrimination. Stated in EEOC’s own words, EEOC guidance documents “explain how federal anti-discrimination laws and regulations apply to specific workplace situations.”
The enforcement guidance initially defines national original discrimination: “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.” The place of origin may be a country, a former country, or a geographic place of origin, including a region that was never a country but nevertheless is closely associated with a particular national origin group (i.e., Kurdistan).
Title VII also prohibits employment discrimination against individuals because of their “national origin group” or “ethnic group” which is defined as “a group of people sharing a common language, culture, ancestry, race and/or other social characteristics.” Employment discrimination against an individual because he or she has physical, linguistic and/or cultural characteristics closely associated with a national origin group is an example of conduct prohibited under Title VII.
In addition to addressing broad general themes such as prohibited employment decisions (recruiting, hiring, promotion and discipline) and workplace practices related to language (accent discrimination, fluency requirements and English-only rules), EEOC also identifies “promising practices” that employers can adopt to promote equality of opportunity and reduce the risk of Title VII violations based on national origin discrimination. Among these “promising practices” are the following: