EEOC Issues New National Origin Discrimination Enforcement Guidance

For the first time in 14 years, the United States Equal Employment Opportunity Commission (EEOC) has updated its guidance on national origin discrimination in the workplace. Issued on November 18, 2016, the guidance addresses new categories of national origin discrimination, clarifies the definition of “national origin,” and informs employers on what constitutes “ethnicity” and “place of origin” discrimination.

About the New EEOC National Origin Discrimination Guidance

The last time the EEOC addressed the issue of workplace discrimination due to national origin was in 2002. Since then, there have been many important legal developments and issues regarding national origin discrimination that are now addressed in the revised guidance. These include retaliation, human trafficking, intersectional discrimination, job segregation, and language and citizenship requirements.

Another significant change to the guidance includes the replacement of the EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination.

The EEOC’s final national origin discrimination enforcement guidance reflects feedback from approximately 20 individuals and organizations and intends to guide employers on how the EEOC will now investigate national origin discrimination and retaliation claims.

New National Origin Definitions Under Title VII

The EEOC’s new enforcement guidance clarifies the definitions of “national origin,” and “ethnicity” and “place of origin” discrimination under Title VII. The guidance defines each as follows:

  • National Origin: “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”
  • Ethnic/National Origin Group: “a group of people sharing a common language, culture ancestry, race, and/or other social characteristics.” This includes discrimination based on ethnicity and physical, linguistic or cultural traits.
  • Employment Discrimination Based on Place of Origin: “discrimination ‘because of an individual’s, or his or her ancestor’s, place of origin.’ The place of origin may be a country . . . may be the United States . . . may be a geographic region, including a region that was never a country but nevertheless is closely associated with a particular national origin group.”

The new guidance also includes Native American, or tribe members in the national origin definition.

Understanding National Origin Discrimination Under Title VII

Title VII of the Civil Rights Act of 1964 protects employees from discrimination and retaliation due to national origin. Title VII makes it unlawful for employers to treat workers unfairly because of their national origin or ethnic background if an individual is from a certain country or if he or she has cultural, physical or linguistic characteristics of a certain ethnic group. In FY 2015, approximately 11% of workplace discrimination charges filed with the EEOC claim national origin discrimination or harassment.

Avoiding National Origin Discrimination in the Workplace

In addition to the important issues that the new enforcement guidelines address, the revisions also provide employers with “promising practices” that employers should follow if they want to reduce their risk of violations and national origin discrimination claims brought by employees. The main promising practices categories include:

  • Recruitment: The new guidelines share that employers should use a variety of recruitment methods to attract a diverse pool of job applicants.
  • Hiring, Promotion and Assignment: The new guidelines also state that employers should establish written objective criteria to evaluate candidates, share the criteria with candidates, and consistently apply the criteria to all job candidates.
  • Discipline, Demotion and Discharge: Employers should also develop objective, job-related criteria they can use to identify unsatisfactory job performance or employee misconduct that can result in termination, demotion or other forms of legal discipline.
  • Harassment: In order to adhere to the new guidance, employers should also clearly communicate to employees through policies and actions that workplace harassment will not be tolerated. Employers should explain that any employee who violates harassment policies and anti-harassment laws “will be disciplined.”

The EEOC has also published a small business fact sheet and FAQ document to be used in conjunction with the new national origin discrimination enforcement guidance.

National Origin Discrimination Laws in California

In addition to federal law, California employment law offers workers additional protections from national origin discrimination. Under the California Fair Employment and Housing Act (FEHA), it is unlawful for your employer to subject you to adverse employment actions based on your actual or perceived national origin or ancestry, or your association with individuals (such as a family member or spouse) who actually are, or perceived to be of a particular national origin.

EEOC National Origin Enforcement Guidance: For Further Reading

No one should ever have to worry about workplace discrimination. If you feel you are a victim of national origin discrimination in California, contact our experienced employment attorneys today for a free consultation.