EEOC Issues Updated Guidance on National Origin Discrimination in the Workplace

Defense Digest, Vol. 23, No. 4, December 2017

By David J. Oberly, Esq.*

Introduction

Recently, the United States Equal Employment Opportunity Commission issued its much-anticipated updated enforcement guidance on national origin discrimination in the workplace. The newly released enforcement document comes on the heels of the EEOC’s newly updated Strategic Enforcement Plan for the fiscal years 2017-2021, in which the Commission signals its intent to place an increased emphasis on investigating and combating discrimination against this particular protected class of individuals. The newly issued guidance provides an up-to-date articulation of the agency’s current, expanded interpretation of federal law regarding national origin discrimination as it pertains to an assortment of workplace situations, such as “intersectional” discrimination, the effect of mistaken perceptions, accent discrimination and fluency requirements. In addition, the document also provides several suggested practices for employers to implement in order to steer clear of falling victim to future national origin discrimination claims. The guidance is highly recommended reading for both employers and legal professionals who represent or counsel business entities, as the document will serve as the EEOC’s playbook that the Commission will heavily rely on its investigation of claims pertaining to national origin discrimination.

Discussion & Analysis

While federal courts use similar legal frameworks in addressing all types of discrimination claims, the newly issued guidance on national origin discrimination focuses on issues that are unique to claims involving this particular class of protected individuals. The following are some of the highlights and most important takeaways from the document.

A large portion of the recently issued guidance focuses on national origin-oriented language issues. The EEOC cautions that because linguistic characteristics are closely associated with national origin, employers must carefully scrutinize employment decisions that are based on language to ensure that they do not violate Title VII. In particular, the guidance offers some insight as to matters concerning accents, English fluency and restrictive workplace language policies.

The first major area of concern for employers pertaining to language-oriented discrimination concerns decisions based on accent characteristics. Because national origin and accent are intertwined, employment decisions or harassment based on accent may violate Title VII. Due to the link between accents and national origin, courts will take a “very searching look” at an employer’s reasons for using accents as a basis for an adverse employment decision and will require evidence—not simply unsupported assertions—to explain such actions. Under Title VII, an employment decision may legitimately be based on an individual’s accent if the accent “interferes materially with job performance.” To meet this standard, an employer must provide evidence showing that: (1) effective spoken communication in English is required to perform job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English.

In addition, employers must also be cognizant of the potential for discrimination to arise based on issues relating to language fluency. Generally, a fluency requirement is permissible only if required for the effective performance of the position for which it is imposed. The EEOC notes that an individual’s lack of fluency in English may interfere with job performance in some circumstances, but not in others. Because the degree of fluency that may be lawfully required varies from one position to the next, employers are advised to assess the level of fluency required for a job on a case-by-case basis.

Importantly, a sizeable focus of the guidance concerns language-restrictive policies, which is due in large part to the EEOC’s position that a worker’s primary language is intricately tied to his or her ethnic identity. Accordingly, this is a hot-button issue for the EEOC, and one that employers should address with great care. As a rule, “one-size-fits-all” blanket policies requiring all employees to speak a certain language are per se unlawful and in violation of Title VII. Moreover, a restrictive language policy will violate Title VII if it is adopted for discriminatory reasons, such as in order to avoid hearing foreign languages in the workplace, to generate a reason to discipline or terminate people who are not native English speakers, or to create a hostile work environment for certain non-English speaking workers. Significantly, the EEOC cautions that evidence of disparate treatment could be found in this respect where the employer fails to consider whether there are substantial business reasons for the policy. A general rule of thumb here is, the weaker the business reasons, the more difficult it will be for the employer to justify the policy under Title VII.

In addition, the new guidance makes clear that an employer’s mistaken perceptions pertaining to national origin are not a defense to a claim of workplace discrimination or harassment. In this respect, Title VII prohibits discrimination based on perception or the belief that someone is from one or more particular countries or belongs to one or more particular national groups. Thus, it is a prohibited employment practice to discriminate based on the perception that someone is from a Middle Eastern country or is of Arab ethnicity when, in fact, the person is from India.

The guidance also cautions employers to ensure that customer preferences relating to national origin do not influence or motivate employment decisions in any fashion. Specifically, it is a violation of Title VII to rely on the discriminatory preferences of co-workers, customers or clients as a basis for employment actions. In this respect, an employment decision based on the discriminatory preferences of others is itself discriminatory.

Finally, employment and staffing agencies should make particular note of the new guidance as they are singled out by the EEOC in the document. Staffing firms, including temporary agencies and long-term contract firms, also may be covered as employers by Title VII if they have the right to control the means and manner of the staff’s work performance, regardless of whether they actually exercise that right (assuming they maintain the statutory minimum number of employees), in which case they may be covered as “joint employers.” The guidance notes that employers may not request that an employment agency refer only applicants and/or employees who are of a particular national origin group. Furthermore, employment agencies may not comply with discriminatory recruitment or referral requests from employers. For example, a placement agency may not honor a client request to recruit only Asian workers.

Takeaways for Employers

Employers are well advised to take note of the new guidance issued on national origin discrimination as the combination of this document and the EEOC’s updated Strategic Enforcement Plan together clearly indicate that this type of discrimination will be a prime target of the Commission moving forward for the foreseeable future. As such, employers should carefully and thoroughly review the guidance and evaluate its impact on any company policies, procedures or practices that may implicate matters of national origin discrimination. Importantly, in addition to discussing hot-button topics in the area of national origin discrimination, the new guidance provides a list of recommended “Promising Practices” for employers to utilize in order to avoid being on the receiving end of future national origin discrimination claims. Accordingly, employers should also thoroughly analyze these proposed practices and implement them where feasible in order to minimize the risk of running afoul of this particular aspect of Title VII moving forward. In addition to guarding against the risk of future charges of discrimination, incorporation of these suggested practices can also serve as a valuable illustration of a company’s adherence to a non-discriminatory workplace environment in the event the company does find itself facing allegations of unlawful workplace practices at some point down the road.

*David is an associate in our Cincinnati, Ohio office. He can be reached at 513.372.6817 or djoberly@mdwcg.com.

_{Defense Digest, Vol. 23, No. 4, December 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}