EEOC Releases Draft Guidance on National Origin Discrimination, and Requests Public Comment

The U.S. Equal Employment Opportunity Commission (“EEOC”) issued proposed enforcement guidance on national origin discrimination on June 2, 2016.

Key Takeaways:        The EEOC guidance incorporates a
wide array of topics related to national origin discrimination including
intersectional discrimination, human trafficking, harassment, accent and
fluency, national security requirements, and citizenship issues.  In addition, the guidance also includes a
“promising practices” section highlighting actions or programs to help
employers reduce the risk of Title VII violations based on national origin.  Although the EEOC has not included sweeping
changes in re-interpreting Title VII, there are a number of areas where the agency
is pushing the envelope to expand the scope of national origin coverage.

Additional Details:    When finalized, the guidance will
replace Section 13 of the EEOC’s Compliance Manual, which was issued 14 years
ago, in December 2002.  It is somewhat
surprising that the agency chose to update its guidance on national origin at
this time, because there have been very few significant changes in this area of
the law since the prior guidance issued. 
Additionally, the number of charges alleging national origin
discrimination has remained steady during the 14-year-period.  In 2002, 10.6 percent of EEOC charges alleged
national origin discrimination.  As of
last year, that number rose a mere 0.1 percent to 10.7 percent.

The most significant aspects of
the EEOC’s proposed guidance:

  • Overlap
    and Intersectional Discrimination
    – The EEOC expects claims of national
    origin discrimination to be more likely to overlap with allegations of race,
    color or religious discrimination, resulting in charges alleging multiple bases
    of discrimination. The EEOC considers
    adverse treatment because an individual is a combination of two or more
    protected bases, i.e. an Asian woman
    to be ?intersectional discrimination” that should result in claims of national
    origin, race and sex discrimination. 
  • Human Trafficking
    – Title VII can apply to human trafficking cases if the employer’s conduct
    is directed at an individual or a group of individuals based upon national
    origin. The EEOC also indicates that
    egregious employer conduct that is typical in human trafficking cases will
    likely constitute unlawful harassment. 
  • Recruitment
    – If an employer’s current staff is ethnically or racially homogenous, the
    EEOC is more likely to view word of mouth recruitment and sending job posting
    only to ethnically or racially homogenous areas or audiences as having the
    purpose effect of excluding applicants based on national origin. 
  • Joint Employer
    – When a staffing firm and an employer have the right to control the means
    and manner of a worker’s employment they may be considered joint employers
    under Title VII regardless of whether they actually exercise that right to
    control the worker’s employment or have the statutory number of employees. 
  • Screening
    Based on Social Security Number
    – The practice of screening out
    new hires or candidates who
    cannot provide a Social Security number could run afoul of Title VII’s
    disparate impact theory if it disproportionately screens
    out work-authorized but newly-arrived immigrants and
    new lawful permanent residents of a certain ethnicity
    or national origin. 
  • Harassment
    Policies in Employees’ Native Spoken Language
    – In evaluating the
    effectiveness of the employer harassment policy for a Farragher-Ellerth
    affirmative defense, the EEOC will consider whether the complaint mechanism was
    accessible in the native languages spoken by employees if the employer knew of,
    or should have known of, the employees’ limited language capabilities. 
  • The
    Impact of the Guidance
    – Although EEOC Enforcement Guidance does not carry
    the same force of law that regulations establish, many courts are willing to
    provide deference to EEOC guidance and rulings based on the agency’s knowledge
    and expertise. The EEOC relies upon its
    Enforcement Guidance to direct its employees in charge investigations and
    related processing such as making cause determinations and considering
    litigation.

 
Follow Up Actions for Employers: 
The public has until July 1, 2016 to
provide input on the proposed guidance.  The
EEOC will consider the public’s comments before finalizing and releasing the
guidance.

Employers should review the EEOC’s proposed guidance on national origin
and consider whether their current policies and practices are in
compliance. 

Please contact FortneyScott if you have questions about the proposed
National Origin Enforcement Guidance and how it may affect your business.  For more information, contact Leslie
Silverman, Esq.
, Shareholder at FortneyScott and former Vice Chair of the
EEOC, or by telephone, 202-689-1204.