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.