Work it Out Blog

New EEOC Proposed Guidance on National Origin: A Strong Stand on Additional Areas of Discrimination

Aug 31, 2016

In the 14 years since the Equal Employment Opportunity Commission (EEOC) last published guidance on national origin, courts have ruled on new areas of discrimination, businesses have become increasingly international, and society’s attitudes toward ethnicity have continued to change.

In its recently released proposed guidance on national origin, the EEOC takes a strong stand on forms of discrimination that were not as detailed in the previous guidance. These include: 

  • Human trafficking
  • Job segregation
  • National security checks
  • Citizenship screening and harassment
  • Accents or English fluency 

“No person should face barriers to equal employment opportunity in America simply because of their ethnicity or country of origin,” says Equal Employment Opportunity Commission (EEOC) Chair Jenny Yang in a release from the organization. The EEOC’s draft of its “Enforcement Guidance on National Origin Discrimination” was released in June 2016 for public comment.

The EEOC works to protect employees from Title VII discrimination, in which protected classes include race, color, national origin, religion and sex.

If employers violate Title VII national origin protection, they usually do so by discriminating against an employee’s actual country or region of origin; ethnicity; physical, linguistic, or cultural traits; ethnic perception; association with ethnic group (e.g., married to person of ethnic group); or citizenship status. 

Employers should note that the guidance includes situations that are not as obvious. Following are some examples:

Human Trafficking. Employers that bring in employees from outside the United States under false pretenses cannot “use . . . force, fraud, or coercion” to limit employees’ rights under Title VII. A factory employer, for example, cannot bring in employees from other countries or regions of the United States and pay sub–minimum wage or restrict the employees’ movement, communications, privacy, worship, access to health care, etc.

Job Segregation. Job segregation includes refusing to assign individuals to certain positions, geographic areas, or facilities—essentially segregating or isolating them—based on their national origin. A restaurant, for example, cannot require that its Latino employees work only as dishwashers and not as bussers or greeters. 

National Security. Employers are protected when making employment decisions based on job requirements “imposed in the interest of the national security of the United States” by law or Executive Order. An employer, for example, may screen a potential employee who has not applied for a Social Security number yet, but the employer may not do so if a potential employee or new hire has applied for a Social Security number but has not received it.

Citizenship. A citizenship requirement is unlawful when it is a pretext or part of a wider scheme for national origin discrimination. Not allowing an employee to continue working because she was born in Spain and cannot provide a U.S. birth certificate, even though she has a valid U.S. passport to prove her citizenship, is citizenship discrimination. 

Accents. Unless an accent “interferes materially with job performance,” an employer may not discriminate based on it. An employer may refuse to hire an air traffic controller who cannot be understood properly in the interview, for example, but may not refuse to hire a waitress who has a thick accent but can be readily understood by customers and fellow employees. 

Fluency. An English fluency requirement is allowed only if it is “required for the effective performance of the position for which it is imposed” on a case-by-case basis. If a Korean national, for example, speaks limited English and applies to a sales position in a non-bilingual, English-speaking area, the employer may refuse to hire him. This may turn out differently if the position were located in a Korean-speaking area in the United States. 

If you have questions related to EEOC compliance, contact Day Ketterer’s employment law attorneys, call 330.455.0173, or email info@dayketterer.com.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.