January 4, 2017
Compliance Matters

Last month, the Equal Employment Opportunity Commission ("EEOC") issued new guidelines on national origin discrimination.  The following article addresses the numerous topics that were raised in the EEOC's guidelines, which include helpful examples and suggestions for employers to help prevent national origin claims.
National Origin Discrimination Generally
The EEOC's guidelines explain that an employee's national origin refers to the place of their birth or the origin of the employee's ancestral heritage.  For example, an employee born in China has a Chinese national origin.  Likewise, a Chinese-American employee has ancestors whose place of origin is in China.  By extension, national origin can refer to specific countries or geographic regions, such as the Middle East, Polynesia, or the Caribbean.
The EEOC defines a national origin group, or ethnic group, as "a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics." Federal law prohibits employment actions that have the purpose or effect of discriminating against employees because of their national origin. National origin discrimination can occur because an employee belongs to an ethnic group (Hispanic, Asian, etc.) or because an employee does not belong to a specific ethnic group. Additionally, national origin discrimination can involve perception or association, as defined below:
Perception: Federal law prohibits discrimination based on an employee's perceived national origin.  For example, discriminating against an employee believed to be Arab is illegal, whether or not the employee is ethnically Arab or from the Middle East.
Association: Discrimination based upon an employee's association with someone of a specific national origin is also prohibited.  For example, discriminating against an employee who is married to someone of a particular national origin is unlawful.
Disparate treatment discrimination occurs when an employee's national origin is a motivating factor in an adverse employment action.  Disparate impact discrimination occurs when an employment practice or policy has a negative significant impact on members of a national origin group.  As with other forms of discrimination (race, religion, sex, etc.), national origin discrimination may involve various types of employment decisions including recruitment, hiring, training,  promotion, transfers,  segregation/classification, leave, work assignments, and discipline.
The following sets forth many of the Questions and Answers identified in the EEOC's guidelines, as well as relevant examples concerning national origin discrimination.
Can national origin discrimination involve multiple protected bases?
Yes.  In fact, national origin discrimination often involves more than one protected category. For example, an employee may face discrimination based on their race, their ancestry, and their religion. An Egyptian employee who is harassed by his colleagues for being Arab and for practicing Islam may thus have claims for national origin, race, and religious discrimination.
What is intersectional discrimination?
Intersectional Discrimination occurs when members of a specific sub-group are targeted.  For example, discrimination against Asian women is unlawful, even if Asian men or non-Asian women are not affected.
Can race, national origin and sex discrimination occur together?
Yes.  For example, Ana, a Mexican American woman, is denied a promotion to a team leader position despite having been qualified and having worked at the company for 15 years. Ana was rejected several times for the promotion and was provided no explanation.  Ana claims that two Mexican American men and one non-Mexican woman were selected for the three promotions and the company has never promoted a Mexican American woman, even though a quarter of its workforce is made up of Mexican American women.  Ana may have viable claims for national origin, race and sex discrimination.
Does it matter if an employer intends to discriminate against a specific national origin group in its recruitment practices or policies?
No. Recruitment practices which have the purpose or effect of screening out applicants based upon their national origin are unlawful.  For example, sending job openings to exclusively one ethnic or racial group or relying on word-of mouth recruitment can result in national origin discrimination, even if such discrimination was unintended. 
Specific Example:
A local aerospace company recruits journeyman mechanics through a personal sponsorship program.  During collective bargaining agreement negotiations, the union brings up the fact that there has been an increase in Korean and Middle Eastern workers in the local labor force.  However, no one in the journeyman mechanic apprentice program is from either of these national origin groups.  The personal sponsorship program is not job related or necessary to the mechanic position.  As a result, the company should consider eliminating the sponsorship program as it appears to have a disparate impact in screening out various national origin groups.  The company should also consider outreach programs to reach a more diverse pool of applicants.
Can an employer request that an recruiter refer applicants from a specific ethnic or racial group?
No. Staffing firms and temporary staffing agencies may be considered joint employers based upon the degree of control they exercise on applicants and employees' employment. If an employer asks a staffing agency to place only Hispanic applicants, not only can the employer be liable for national origin discrimination, the staffing agency may be liable if it complies with this request.
Can a staffing agency be liable for a client employer's unlawful transfer of an employee based on her national origin?
Yes. For example, if the staffing agency learns that the client employer transferred an employee to a lower-paying position based upon stereotypes about her African origin, the agency can be liable if it fails to take timely corrective action.  Appropriate corrective actions could include offering to assign the employee to another employer client or insisting that the employer client return the employee to her former position.
If an employer hires only members of one national origin group to supervisory positions, is this national origin discrimination?
Assuming that there are qualified candidates from various racial and ethnic groups, the employer may be liable for national origin discrimination.  For example, a resort in Florida fills most of its landscaping jobs with Caribbean born applicants.  However, all of the landscape supervisory positions are held by white employees.  Shauna, a Caribbean born landscaper applies for a landscape supervisor position.  Shauna is denied the position even though she possesses all of the qualifications for the job.  Soon after, she learns that the resort hired a white landscape supervisor with five years less supervisory experience than Shauna.  Shauna may have a viable claim for national origin discrimination.
What if selection criteria have a discriminatory effect on members of a national origin?
Unless the selection criteria are job related and consistent with business necessity, the employer may be liable for national origin discrimination.  For example, Joseph, a Latino, who has worked for five years with a local transportation company applies for a supervisory promotion.  Joseph is qualified for the job and has several years of high performance evaluations. The company chooses a less qualified applicant for the supervisor position because the company is concerned that employees may not "want to take orders from a Latino". Joseph may have a viable claim for national origin discrimination.
Can an employer take into account customer preference?
No. Employers may not rely on customer preferences as a basis for an employment decision. For example, a Chinese American student applies to work as a sales associate at cutting edge outdoor clothing company. The student is qualified and has several years of experience working in retail.  During his interview, the store manager tells the student that he looks "foreign" and would not fit the company's "all-American image".  The student is not hired. If there is evidence the company based its decision not to hire the student because its customers prefer salespeople who do not look "foreign", the EEOC would have reasonable cause to find that the student was subjected to national origin or race discrimination.
Can employers base job assignments on national origin?
No. Federal law prohibits employees from assigning employees to certain positions, geographic areas, or facilities or otherwise isolating or segregating employees based upon their national origin.  For example, Juan, a Hispanic man with four years of experience as a server in high end restaurants applies for a job at a high end steak house chain. Before applying for the job, Juan saw that the chain had advertised positions for food preparation, cleaning and serving. Believing Juan would be better suited for a position that does not involve customer interactions due to Juan's Spanish accent, the hiring manager offers Juan a food preparation position.  Juan is qualified for the server position and his accent would not materially affect his ability to do the job.  Based on these facts, the EEOC may find that the restaurant chain discriminated against Juan based upon his national origin.
Is discrimination based upon an employee's citizenship status a form of national origin discrimination?
It can be if the citizenship requirement is not job related or necessary to the position.  For example, employees are permitted to choose which documents to submit to verify their identity and employment eligibility.  However, an employer may not require applicant to submit documentation of a social security number if it has the effect of disproportionately screening out national origin groups, including newly arrived immigrants and new lawful residents. 
Does national origin discrimination include harassment?
Yes. Title VII prohibits national origin harassment when the harassment is so severe or pervasive that it alters the employee's work conditions and creates a hostile work environment. National origin harassment may involve ethnic slurs, physical violence, graffiti, ridicule or intimidation based on an employee's language, culture, birthplace, dress, or accent. Whether national origin harassment rises to the level of a hostile work environment will depend on the frequency of the conduct, the context in which it took place, and whether physical threats are involved.
For example, a Pakistani employee at an automobile dealership is regularly called "camel jockey", "ayatollah" and "terrorist" by his coworkers. The other employees intentionally embarrass him in front of customers by claiming that he is incompetent.  In this case, the EEOC may find reasonable cause that the regular harassment by coworkers constitutes a hostile work environment.
Can policies restricting language contribute to a hostile work environment?
Yes. Language restriction policies, or English-only policies, are lawful if the policies are job related and based upon business necessity.  However, such policies may have the effect of creating a hostile work environment in certain circumstances.  For example, a hospital's CEO calls Filipino nurses into a meeting where they are told that the hospital has received complaints that the nurses were speaking loudly in Tagalog outside a patient's room.  The CEO reminds the nurses that they should only speak English during their rounds.  The CEO later instructs other nurses to report on any other employees found speaking languages other than English.  The Filipino nurses are shadowed by other co-workers who mock their accents and loudly remind them to "only speak English".  Based on these facts, the nurses may state a claim for hostile work environment harassment based upon their national origin.
Can an employer be liable for non-employee national origin harassment?
Yes. Employers may be liable for national origin harassment by non-employees if the employer knew or should have known about the hostile work environment and failed to take immediate corrective action.  For example, a frequent visitor at a nursing home often yells ethnic slurs at a South Indian nurse and has tripped and pushed the nurse on multiple occasions.  The nurse complains to the nursing home and is told that it cannot take any corrective action because the visitor is not an employee or resident.  The EEOC may find reasonable cause that the nurse was subjected to a hostile work environment based on her national origin because the nursing home had the power to control the visitor's access to the premises, was aware of the conduct, and did nothing.
Can an employer make employment decisions based on an individual's accent?
Yes.  An employment decision based on an employee or applicant's accent may be lawful if (1) effective spoken communication in English is required to perform job duties and (2) the accent "interferes materially with job performance." For example, an airline posts a job for a customer service agent to provide on-site assistance to passengers who have missed connections or whose flights have been delayed. The job requires effective communication skills in a noisy environment with stressed customers.  A Thai applicant participates in a job simulation as part of the interview process. During the simulation, two experienced recruiters note that the applicant's strong Thai accent was hard to understand and conclude that it will materially interfere with the applicant's effective spoken communication.  As a result, the Thai applicant is not hired. The EEOC will not find reasonable cause for national origin discrimination because effective spoken communication in English is required for the job.
Are English fluency requirements permissible?
An English fluency requirement is only permissible if it is required for effective performance of the job.  Generally, fluency requirements should vary depending on the position and the nature of the job.  For example, a research assistant position may require a lower degree of English fluency than a senior scientific writer position.  Importantly, some jobs do not require English fluency at all.
Can an employer require fluency in languages other than English?
Yes.  As long as fluency in another language is required for the position, an employer may require that successful applicants be fluent in a language other than English. For example, if a business provides services to predominantly Spanish-speaking customers, it may require that its employees have fluency in Spanish.
Are English-Only Rules Non-Discriminatory?
Restrictive language policies or English-only rules are permissible if such policies are job related and based on business necessity.  However, restrictive language policies cannot be applied in a discriminatory manner. For example, an employer cannot prohibit employees from speaking one language, but not others, e.g. "no Spanish rule". Additionally, restrictive language policies must be consistently enforced.  An employer who disciplines employees for speaking in Vietnamese while failing to enforce the policy with Spanish-speaking employees may be liable for national origin discrimination. 
Restrictive language policies should be tailored to job duties and work areas and should accommodate lunch and breaks.  For example, a blanket restrictive language policy which applies at all times, to all jobs, workplace situations, or locations may be unlawful unless the employer can offer evidence that the policy is job related and consistent with business necessity.  An employer may satisfy this standard by providing detailed, fact-specific evidence demonstrating the business purpose of the language policy is narrowly tailored and necessary to safe and efficient job performance or safe and efficient business operations.
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 www.brgslaw.com.  

Richard S. Rosenberg
Katherine A. Hren
Anne S. Kelson
Ballard Rosenberg Golper & Savitt, LLP

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Encino, CA 91436
(818) 508-3700

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Ken Ballard: 
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Charlotte, NC 28210
Matthew Wakefield:
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