August 22, 2016
Compliance Matters
SM                                                                                                 Newsletter
Equal Employment Opportunity Commission Releases New Guidance for Employers Regarding National Origin Discrimination in the Workplace 
The  Equal Employment Opportunity Commission ("EEOC") is the federal agency tasked with enforcing the workplace bias rules found in Title VII of the Civil Rights Act of 1964. EEOC recently released a proposed 57 page enforcement guidance addressing national origin discrimination under Title VII ( Link). The EEOC last comprehensively addressed national origin discrimination in 2002, and the revised guidance addresses important issues and significant legal developments that have occurred since then.
Title VII protects individuals from employment discrimination and retaliation based on their race, color, religion, sex or national origin. Title VII prohibits employers from treating individuals unfavorably because of their national origin (including because they are from a particular country or part of the world), their ethnicity, or the employer's perception of their ethnic background. With all of the discussion in the Presidential campaign about enhanced immigration screening, as well as the increasing ethnic diversity of the American work force, many experts expect a substantial upswing in National Origin discrimination filings.    
The proposed enforcement guidance addresses broad issues concerning employment decisions, such as recruitment, hiring, promotion, and discipline, as well as harassment, including hostile work environment, employer liability, and human trafficking.  Additionally, the proposed enforcement guidance contains a detailed discussion of workplace issues relating to languages (e.g., accent discrimination, fluency requirements, English-only rules) or citizenship. 

For example, the proposed guidance makes clear that, unless an employee's accent materially interferes with job performance, so long as that employee can communicate effectively in English, the employer may not discriminate against the employee because of his/her particular accent.  

Similarly, the EEOC recognizes that while an individual's English fluency may be material to the performance of the employee's job duties, requiring a greater level of fluency than is necessary for a position may violate Title VII. 

The proposed guidance also cautions against the adoption of absolutist English-only policies in the workplace, as the adoption of such policies may be perceived as being motivated by discriminatory reasons, such as bias against employees of a particular national origin.  The EEOC advises that English-only policies be reasonable and limited in their application to certain times and locations in the workplace, and that they be justified by reasons of business necessity.
The EEOC also suggests "best practices" employers may adopt to promote equality of opportunity and to reduce the risk of Title VII violations based on national origin discrimination.  Although the Guidance is not final, these are good suggestions that ought to be considered as this portion of the Guidance is not likely to change. Some of the more significant of these best practices suggested by the EEOC include the following:
  • Recruiting using newspapers of general circulation, and especially in newspapers targeted to groups who are under-represented in the workforce, is a better practice than recruiting by word-of-mouth, which enhances the danger of magnifying existing ethnic, racial or religious homogeneity in the workplace.
  • Posting job announcements with community-based organizations with outreach to under-represented groups is a recommended method to increase diversity in the workplace.
  • Employers should declare they are an "equal opportunity employer" and list qualifications related to language ability in the job description.
  • Employers should establish objective written criteria for evaluating candidates for hire, promotion or assignment and apply those criteria even-handedly to all applicants. Objective criteria for employment decisions should be tied to business needs.
  • Employers should develop objective, job-related criteria for identifying the unsatisfactory performance or conduct that might result in disciplinary actions.
  • When languages other than English are spoken in the workplace, employers should ensure that their policies are communicated effectively in all those languages if the intended audience exceeds 10% of the workforce.
  • The most important factor in preventing harassment is clear policies that address issues of national origin and the implementation of training programs that include discussions of national origin as a protected class.
When the proposed enforcement guidance becomes final, it will be included in the EEOC's Compliance Manual, which means that EEOC investigators will use it as a resource in conducting investigations. Although the proposed guidance refers to recent court decisions on this topic, the EEOC makes clear that it will not always follow the majority position of courts on all issues regarding national origin discrimination. Rather, as the EEOC's proposed guidance states, in some cases, the EEOC will have independent views on the correct interpretation of the law and will follow its own interpretation when investigation charges of unlawful discrimination.
Employers should carefully review all workplace policies and practices to ensure they are in line with the most recent guidance on discrimination in the workplace.  Also, the best practices suggested by EEOC should be incorporated into the Company's recruitment regimen to the extent possible. If you have any questions about  this article, please contact any member of the Firm.  We can be reached at (818) 508-3700, or online at .
Richard S. Rosenberg
Katherine A. Hren
Zareh A. Jaltorossian
Ballard Rosenberg Golper & Savitt, LLP 

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