Last month, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).
While the Guidance is not legally binding, it explains the position of the Commissioner of the EEOC. Below is a brief overview of some of the most noteworthy topics it addresses:
Definition of National Origin
The EEOC defines “national origin” to include: (1) the country in which you or your ancestors were born (or a geographic region closely associated with a national origin); (2) your ethnicity; or (3) having “physical, cultural, or linguistic characteristics” associated with “a particular national origin group.”
Title VII prohibits discrimination regarding all forms of employment actions such as recruitment, hiring, promotion, job assignments, job, classifications, transfers, compensation and benefits, time off, training programs, discipline, layoffs and termination decisions. It also prohibits harassment and retaliation.
In addition, Title VII prohibits employers from discriminating against an employee based on their perceived national origin; the fact that they associate with or are related to someone of a particular national origin; or because they are not of a particular national origin.
Discrimination Based on Language
The Guidance explains that employers are permitted to make legitimate decisions based on the language spoken by their employees. However, since language often is closely related to national origin, decisions based on language also can be unlawful.
For example, in a lawsuit in which an employee claims an employer made an employment decision because of an his or her accent, the court should require the employer to demonstrate both that: (1) effectively speaking English is necessary to perform the job; and (2) the individual’s accent significantly interferes with his or her ability to communicate in English.
Similarly, employers can require employees to be fluent in either English or another language, but only to the extent that fluency really is necessary for the employee to effectively perform his or her specific job.
Generally, the EEOC considers it unlawful to prohibit employees from speaking languages other than English in the workplace. However, employers can limit the language employees speak under certain circumstances to the extent necessary to promote workplace safety or efficiency. If an employer has such a rule, it cannot selectively enforce it regarding one (or some) but not all languages spoken in the workplace. In addition, the EEOC considers any workplace language policy to be discriminatory unless the employer notifies employees about it in advance.
Protection for Employees Working Outside the United States
Title VII applies to United States Citizens who work for American companies in foreign countries, except to the extent complying with it would violate the other country’s law. This applies to most companies that operate in the United States. Title VII also applies to foreign employers that are controlled by American employers, such as a subsidiary of an American company that is controlled by the American parent company.
Efforts to Reduce Discrimination
The Guidance also discusses a number of actions employers can take to minimize the risk of committing national origin discrimination in the workplace. The EEOC calls these “promising practices.” For example, it encourages employers to consistently use written objective criteria for evaluating job performance and making termination and other disciplinary decisions. It also urges employers to establish anti-harassment policies, communicate them to all of their employees, and make it clear that they do not tolerate unlawful harassment.