Most employers know that it’s illegal to discriminate on the basis of an applicant or employee’s national origin. It’s been illegal at least on the federal level since July 2, 1964, under Title VII. Has anything really changed? Well, sort of. The issue has come to the forefront again, as charges of national origin discrimination are again on the rise. The EEOC therefore specifically included protection of migrant and foreign workers among its top priorities in its Strategic Enforcement Plan for 2017 – 2021. That’s not all, though. Last month, for the first time since 2002, the EEOC also issued an updated Enforcement Guidance on National Origin Discrimination in the Workplace. What’s changed since then? Now, I wouldn’t bother you with a whole post on the topic if I didn’t think there were points worthy of our attention. So, let’s take a look and see what you should be paying attention to, after the jump…
(image from blog.hrusa.com)
I know that many of you may be thinking that the Enforcement Guidance may not be a big deal, that it’s subject to change, because we will be getting a new, very different President in office in just over a month. If it changes, that change will take some time. So for now, it’s still something that all you employers with 15 or more employees need to take seriously.
While you may be familiar with much of the points on national origin discrimination, the updated Guidance does have some points that are new, particularly with respect interpreting Title VII. For example, the definition of national origin discrimination is a bit more expansive. While the definition includes discrimination based on a person being from a different country, it also includes discrimination based on one’s ancestry. In other words, one who came to the United States from a foreign country and experiences employment discrimination is protected under Title VII, but so is someone who was born here, but is subjected to employment discrimination based on where his or her parents or grand-parents may have been from originally. Under this updated Enforcement Guidance, however that’s not all though. It also includes discriminatory treatment against those with physical, cultural or linguistic characteristics associated with a particular national origin group. In other words, national origin discrimination also includes discrimination based on perceived national origin. That’s still not all. The EEOC also states that national origin discrimination includes discrimination against someone based on his or her association with someone of a different nationality ( a spouse of a foreigner for example).
What else is include in the Enforcement Guidance? The EEOC divides discriminatory practices based on national origin into the following four categories:
1.Recruitment: I’m assuming you know you can’t disproportionately limit job opportunities based on someone’s national origin, without running afoul of Title VII. There is one very narrow exception: different treatment of an applicant based on his/her national origin that is “job-related and consistent with business necessity”. In other words you really have to have a compelling reason, such as the employee’s safety, co-workers’ safety, or public safety in order to limit the job to certain nationalities, or to exclude certain nationalities. Here are some examples of national origin discrimination in recruitment: 1) requiring a candidate to be a citizen; 2) using only word-of-mouth recruitment methods that could result in exclusion of a disproportionate amount of migrant/foreign-born workers; 3) a staffing firm or other outside contractor complies with a business’ request and only sends candidates of certain national origins (In this case both the staff firm/contractor and the client firm are jointly liable. (Click here for a review of the concept of joint employment and discrimination liability). What can you do to avoid, or at least minimize liability in this area? The EEOC recommends that you vary your advertising, outreach and recruitment practices. Consider attending job fairs, posting job advertisements online, posting job announcements at different community organizations. The objective is to ensure a diverse applicant pool.
2. Hiring, Promotion and Assignment: There doesn’t seem to be much new here. You can’t treat applicants differently during the hiring practice on the basis of national origin. So, for example, in addition to customer preference (discussed above) you cannot use company image as a reason either. The EEOC’s recommendation here: establish objective criteria for evaluating employees in each position, and apply those criteria consistently to applicants and employees.
3. Discipline, Demotion and Discharge: National origin, like all other protected categories under Title VII, cannot be the basis for any of these types of decisions either. Legitimate, non-discriminatory reasons include conduct, performance, lack of work, to name a few. Here, the EEOC recommends a progressive disciplinary policy that clearly communicates your expectations as to performance and conduct, and gives employees adequate opportunity to address the issue prior to discharge. Of course, as with pretty much everything, document any decisions or actions you do take. Clear documentation will often be invaluable in avoiding — or at least minimizing–liability under Title VII or other anti-discrimination laws.
4. Harassment: The new Guidance provides the following examples of harassment based on national origin:ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or any other offensive conduct directed toward an individual based on his or her birthplace, ethnicity, culture, language, dress or foreign accent. Please note that you can be liable for harassing behavior, not only of your supervisors but also of other non-supervisory employees and, even, in some cases of non-employees. Bottom line: clearly communicate your anti-harassment policy to all employees, train employees as to how to report harassment and managers as to how to handle complaints, and take all such complaints seriously.
OK, I know this is getting a bit long, but there are two more areas of importance: language and citizenship.
Regarding language (and, just to be clear, I don’t mean curses or slang): You can base employment decisions on accent or language only if the accent or language proficiency (or lack thereof) significantly impacts job performance. Here is one example from the EEOC: someone could be proficient enough in English to be a research assistant but may not be proficient enough as a writer. What about English-only requirements? The EEOC says they are presumed to violate Title VII. That said, however, a narrowly tailored policy, applicable only in certain times or places that you can establish is job-related and consistent with business necessity (there’s that phrase again) in which you can provide detailed, fact-specific and credible evidence showing the policy is necessary to safe and efficient job performance or safe and efficient business operation might pass muster.
Finally, what about citizenship? Generally speaking you cannot impose any such requirements. Title VII applies to foreign nationals, and it applies regardless of immigration status. Therefore, if you hire undocumented workers, you cannot use that status as a defense to discrimination allegations. Moreover, if you threaten to call I.C.E. on an undocumented worker, you may also be liable for retaliation under Title VII. If federal law requires U.S. citizenship, then you will not be in violation of Title VII if you follow that requirement.
OK, I’m all talked out on this one for now. You can find the actual Enforcement Guidance here if you would like more information or you simply haven’t anything else you would prefer to read right now before bedtime. Come back next week for a discussion of more issues of interest to employers. See you then!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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