The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on national origin discrimination, which serves as a timely reminder of the law and the EEOC's continued focus in this area in the wake of an often-divisive presidential election in which immigration was a frequent topic. The guidance is the agency's first interpretation of the law on national origin discrimination since its 2002 compliance manual.

The guidance notes that the "American workforce is increasingly ethnically diverse;" that the largest numbers of immigrants to the United States in recent years have been from Asia and the Middle East; and that while immigrants are present in "every occupation," they are highly represented in many of the country's highest growth jobs, such as those in the service sector. Based on these observations, it appears the EEOC expects to see an uptick in national origin discrimination complaints in the coming years. Last year, 11 percent of the nearly 90,000 EEOC charges filed nationwide involved national origin discrimination claims.

The guidance emphasizes the broad definition of national origin discrimination. According to the EEOC, it includes "discrimination because an individual (or his/her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group." A "certain place" may include a country, former country (such as Yugoslavia), or a region (such as Kurdistan). Physical, cultural, or linguistic characteristics may include accents or traditional styles of dress. And, national origin discrimination encompasses adverse actions based on perceived ethnicity, as well as actions based on an individual's association with others having a particular national origin.

With respect to accents and language ability, the EEOC explains that an employment decision legitimately may be based on an employee's accent or fluency in English if those traits materially interfere with job performance. To meet this standard, an employer must show that effective spoken communication in English is required to perform the duties of the job and that the presence of an accent materially interferes with the employee's ability to communicate in English.

The EEOC also addresses harassment based on national origin, given that, as the guidance notes, 37 percent of all national origin discrimination lawsuits in 2015 included a harassment claim.

The guidance ends with practical tips and policies employers can implement in an effort to minimize the likelihood of violating federal discrimination law based on national origin, including:

  • Using a variety of recruitment methods to attract a diverse applicant pool;

  • Establishing written objective criteria for hiring, firing, and promoting; communicating that criteria to prospective candidates and employees; and applying the criteria consistently; and

  • Communicating to employees through practice and policy that harassment will not be tolerated and those who harass will be disciplined.

Ballard Spahr's Labor and Employment Group routinely assists employers in ensuring compliance with Title VII and other federal, state, and local statutes and regulations. In addition, Ballard Spahr's Diversity and Inclusion Team works with clients to develop and enhance diversity and inclusion programs. If you would like assistance updating your policies, practices, or procedures impacting national origin issues, please contact any member of the Group.

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