EEOC Releases Proposed National Origin Enforcement Guidelines

EEOC Releases Proposed National Origin Enforcement Guidelines

The United States Equal Employment Opportunity Commission (“EEOC”) just released a 57-page document providing guidance to its enforcement officials and the general public on developments in the area of National Origin discrimination. The EEOC is the federal agency charged with investigating, conciliating, and prosecuting cases of employment discrimination against members of protected classes under Title VII of the Civil Rights Act of 1964.  The August 2016 update (the first since 2002) provides enforcement officials and investigators guidance on how to seek out and apply principles of national origin discrimination in the field.  

The EEOC released this document because national origin discrimination claims are not only on the rise, but are predicted to continue to increase in the intermediate to long-term future based on the instability of society in the United States today and going forward. With several high-profile incidents of domestic terrorism and illegal immigration issues reaching a boiling point in the media; not to mention an increasingly diverse workforce in this country (generally seen as a positive), the EEOC feels that national origin as a protected class is something that bears careful watch due to the propensity for xenophobia and discrimination against people from other countries (or perceived as such) in the workplace.

Intersectional Discrimination Highlights EEOC’s Proposed Guidance

Highlighting the guidance provided in the EEOC’s proposed guidelines is a discussion on intersectional discrimination, with examples where individuals of a specific national origin are targeted for employment segregation or non-promotion based on the likelihood that they may be of a specific religion or other protected class (particularly Muslim). The EEOC comments that members of particular national origins (or individuals perceived as such) may be more likely to be targets of discrimination based on a business perception of customer preference, or unnecessary discipline, demotion and discharge. The document reminds us that any discrimination based on one or more protected classes, regardless of the motive, is always illegal.

National Origin Harassment and Spoken Language Issues also Key

Two other key issues discussed in the proposed enforcement guidelines are Title VII’s prohibition against unlawful harassment based on national origin and language issues. These issues frequently cross over, as individuals not only are often denied promotion and other job benefits based on their inability to speak the English language (or a discriminatory policy is put in place), but they are also subjected to derogatory or demeaning comments about their language fluency (or lack thereof) that can lead to a finding of hostile work environment harassment. This guidance reminds us that English-only rules and other policies must be carefully crafted and directly related to the employee’s job duties or are likely to be found discriminatory.

EEOC Suggests “Promising Practices” for Inclusion With Training Critical

Of particular importance to Syntrio’s clients and prospective clients, the EEOC outlines a list of “promising practices,” defined by the agency as proactive measures that can help reduce the risk of violations and “foster more diverse and inclusive work environments.”  Implementing some or all of these promising practices will be key to avoiding issues with the EEOC should a complaint of discrimination occur.  

The EEOC’s first suggestion is that employers recruit employees in widely circulated newspapers, as well as at job fairs and online postings that will reach underrepresented segments of the workforce. To that end, the EEOC’s proposed guidelines stress that relying on word of mouth recruitment results in homogeneity in a workforce and may have a disparate impact on members of some national origins.

The EEOC also encourages employers to be inclusive in their policies regarding hiring and promotion, as well as discipline, demotion and discharge. Indeed, the guidelines encourage employers to implement training programs to educate managers to take proactive managers to ensure that policies are effectively communicated to employees in all languages spoken in the workplace.

Finally, the EEOC encourages training all employees on the dangers of harassment, and educating them on the law and employer policies regarding harassment, and particularly national origin harassment. This is of particular importance to those employers who currently conduct sexual harassment training but perhaps not training on prevention of unlawful workplace harassment against members of other protected classes, like national origin.

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