EEOC Issues New Guidelines on National Origin Discrimination

With the increase in terrorism and attention given to immigration-related complaints, there is commensurate potential for workplace conflict and harassment related to national origin. The Equal Employment Opportunity Commission (EEOC) recently issued new guidelines to help employers prevent national origin discrimination in the workplace. This article discusses national origin discrimination and highlights the key examples in the EEOC’s newly issued guidelines.

National origin discrimination defined

National origin discrimination involves treating applicants or employees unfavorably because they are from a particular country or part of the world, have a particular ethnicity or accent, or appear to be of a certain ethnic background. National origin discrimination also can involve treating people unfavorably because they are married to or associated with a person of a certain national origin. Discrimination can occur when the victim and the person inflicting the discrimination are of the same national origin.

It is unlawful to harass a person because of his national origin. Harassment can include offensive or derogatory remarks about a person’s national origin, accent, or ethnicity. Harassment is illegal if it is so frequent or severe that it creates a hostile or offensive work environment or results in an adverse employment decision. The harasser can be the victim’s supervisor, a supervisor in another department, a coworker, or a nonemployee such as a client or customer.

It is illegal for an employer to have a policy or engage in a practice that applies to everyone, regardless of national origin, if the policy or practice has a negative impact on people of a certain national origin and is not job-related or necessary to the operation of the business. For example, an employer can require an employee to speak English fluently only if fluency in English is necessary to perform the job effectively. An employer may not base an employment decision on an employee’s foreign accent unless the accent seriously interferes with job performance.

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate in hiring, firing, or recruitment based on an individual’s citizenship or immigration status. The Act prohibits employers from hiring only U.S. citizens or lawful permanent residents unless they are required to do so by law, regulation, or government contract. Employers may not refuse to accept lawful documentation that establishes an employee’s employment eligibility or demand additional documentation beyond what is legally required when verifying employment eligibility (i.e., completing the U.S. Department of Homeland Security’s (DHS) Form I-9) based on an employee’s national origin or citizenship status. The IRCA also prohibits retaliation against individuals who assert their rights under the Act.

EEOC guidelines

The new EEOC guidelines provide a number of examples of potential discrimination, including:

• A company that started as a family-owned business limits an apprentice program to individuals who are sponsored by its current machine mechanics. The requirement may exclude qualified individuals of a particular national origin because they have no previous connection to current machine mechanics.
• Ava, a Mexican-American woman, is qualified for a team leader position but has been rejected for the promotion three times without explanation. She claims that two non-Mexican women and a Mexican man were selected for the positions and that the company has never promoted a Mexican-American woman to team leader in its 20-year history. Employment discrimination motivated by a stereotype about two or more protected traits constitutes intersectional discrimination.
• Anu is a woman of Bangladeshi ancestry who wears a sari. She is offered a cashier position at a bakery after a phone interview. When she reports for her first day of work, she is quickly told by the manager who interviewed her that the bakery has changed its mind and has found someone “better suited” for the position.
•  Joseph, who is Latino, has worked successfully for a transportation company for more than five years. In annual evaluations, his supervisors note his superior technical and organizational skills. He applies for a promotion to a position in which he would supervise about 25 employees who perform work similar to his own. Joseph is qualified for the job, but the selecting official rejects him because he believes some employees will not want to “take orders from a Latino.”
• Alex, a Chinese-American college student, applies for a salesperson position at a suburban clothing store. He is qualified for the job because he has successfully worked in retail sales before. The manager who conducts the job interview asks Alex where he was born, states he looks “foreign,” and expresses concern that Alex’s physical appearance does not fit the company’s “all-American image.”
•  A fine-dining establishment opens a restaurant in an upscale urban neighborhood. The restaurant runs advertisements in local newspapers recruiting people to work in food preparation, serving, and cleaning. Don, a Hispanic man with three years of experience as a server at a high-end restaurant, applies for a server position. Believing Don would be better suited for a position with limited public contact because of his Spanish accent, the hiring manager offers him a position in cleaning or food preparation.
• A grocery store has a written tardiness policy that provides a 10-minute grace period after scheduled start times. After the 10 minutes, employees are marked tardy. An employee who has repeatedly violated the tardiness policy is issued a written reprimand. Da’uud, a Somali employee, is given a written reprimand for tardiness after arriving to work at least 15 minutes late on three occasions. Although other Somali workers have been reprimanded for tardiness, Hmong employees either are permitted to make up the time or are just reminded to be on time.
• Yusuf, who is of Iraqi national origin, was discharged from his position as a bus driver. According to the bus company, some customers complained they were wary of riding with a driver who appears to be Arab in light of allegations of terrorist activity against Americans in the Middle East.
• Although some of those examples involve blatant acts of discrimination, they illustrate the problem of decision makers improperly succumbing to subtle stereotypes when making hiring, promotion, or disciplinary decisions. Additional examples of potential national origin discrimination and practical guidance can be found at www.eeoc.gov/laws/guidance/national-originguidance. cfm.

Bottom line

National origin discrimination can take many forms and is often blurred with other forms of discrimination (e.g., based on race or gender). Employers must be extra vigilant given the polarized climate we currently find ourselves in. Remind supervisors and employees to respect coworkers and avoid engaging in harassment or discrimination based on national origin.

This article, slightly modified to note recent updates, was featured in the January 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.