<div dir="ltr"><h1>Proposed EEOC Guidance on National Origin Discrimination Provides Clues to Agency’s Focus</h1>
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<div class=""> <span class="">Wednesday, June 29, 2016</span> </div> </div>
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</div><p class="">The Equal Employment Opportunity Commission
has issued a Proposed Enforcement Guidance on National Origin
Discrimination (“PEG”) and is allowing the public to comment through
July 1, 2016. The last time the EEOC issued specific guidelines on
National Origin Discrimination was in 2002.</p><h3 class="">Role of the PEG</h3><p class="">The
PEG is intended to communicate the EEOC’s position on national origin
discrimination, including how the agency will investigate these types of
charges. When it becomes final, the PEG will be included in the EEOC’s
Compliance Manual and used by EEOC investigators as a resource in
conducting investigations. Although the PEG refers to court rulings in
this area, this does not mean the EEOC always will follow the majority
position of courts on all issues relating to national origin. Rather,
the PEG states that, in some cases, the EEOC has its own view on the
correct interpretation of the law and will follow its own views.</p><h3 class="">Underlying Legal Framework</h3><p class="">Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, and national origin.</p><h3 class="">Specific Issues</h3><p class="">Courts
use broadly similar analysis and legal frameworks to evaluate
discrimination claims whether those claims be based on race, color,
religion, sex, or age. The EEOC’s PEG addresses issues that are unique
to national origin claims.</p><p class="">The following highlights some of the common national origin discrimination issues the EEOC investigates.</p><h4 class=""><strong><em>1. Mistaken perception of someone’s national origin is not a defense</em></strong></h4><p class="">Under
Title VII, an employee is protected from discriminatory conduct based
on national origin, even if the employer or coworkers are mistaken as to
that employee’s national origin. As an example, the EEOC refers to a
situation where an employee is harassed for being Arab, even though the
employee was from India.</p><h4 class=""><strong><em>2. When may ask for social security numbers?</em></strong></h4><p class="">The
PEG acknowledges that employers have legitimate reasons to ask a job
candidate for a social security number and that an employee be assigned a
social security number so that employers can report federal wages and
taxes to the Social Security Administration (SSA). But according to the
EEOC, the U.S. Citizenship and Immigration Services permits employees to
work if they have applied for but not yet received a Social Security
number.</p><p class="">The PEG further sets forth the EEOC’s
position that if an employer has a policy or practice that screens out
new hires or candidates who lack a social security number, the EEOC may
assume that policy has a disparate impact based on national origin. An
employer with such a policy or practice will be required to show that
the policy or practice is job-related and consistent with business
necessity.</p><h4 class=""><strong><em>3. Human trafficking</em></strong></h4><p class="">The
PEG discusses the EEOC’s concern that immigrants with limited work
authorizations may be targets for abuse, exploitation, harassment, and
lower pay. The EEOC notes that it is authorized to seek U-visas for
persons who are victims of certain crimes and who assist in the
prosecution of those crimes. A U-visa provides temporary immigration
benefits, including work authorizations, to eligible persons who might
not be otherwise eligible for these benefits.</p><h4 class=""><strong><em>4. When can accent be considered a factor for employment decisions?</em></strong></h4><p class="">According
to the EEOC, concerns with accents sometimes result in conduct that is
national origin discrimination. Therefore, the EEOC will take a “very
searching look” at an employer’s reasons for using an employee’s accent
as a basis for an adverse employment decision. Employers only will be
able to base employment decisions on accent when the accent “interferes
materially with job performance.”</p><h4 class=""><strong><em>5. When can English fluency be considered a factor for employment decisions?</em></strong></h4><p class="">Similar
to accent issues, employers may use English fluency as a job criteria
only when the lack of fluency interferes with job performance. The EEOC
advises employers to assess the level of fluency for a job on a
case-by-case basis. In other words, how much English-fluency is required
for one job may be different from how much fluency may be required for
another job. The EEOC also states that if a candidate or employee is not
sufficiently English fluent for one position, the employer should
consider that candidate or employee for positions where less or even no
fluency is not required.</p><h4 class=""><strong><em>6. Can employers require foreign language fluency?</em></strong></h4></div><div class=""><ul class=""><li><img src="http://www.natlawreview.com/sites/all/themes/nationallaw/img/left_light.png"></li><li class="">Page</li></ul><ul class="" id="jkit-paginate-pagination-wrapper"><li class="">1</li><li>2</li><li>3</li></ul><ul class=""><li><img src="http://www.natlawreview.com/sites/all/themes/nationallaw/img/right_dark.png"><a href="http://www.natlawreview.com/article/proposed-eeoc-guidance-national-origin-discrimination-provides-clues-to-agency-s">http://www.natlawreview.com/article/proposed-eeoc-guidance-national-origin-discrimination-provides-clues-to-agency-s</a></li><li><br></li></ul></div><br clear="all"><br>-- <br><div class="gmail_signature" data-smartmail="gmail_signature">**************************************<br>N.b.: Listing on the lgpolicy-list is merely intended as a service to its members<br>and implies neither approval, confirmation nor agreement by the owner or sponsor of the list as to the veracity of a message's contents. Members who disagree with a message are encouraged to post a rebuttal, and to write directly to the original sender of any offensive message. A copy of this may be forwarded to this list as well. (H. Schiffman, Moderator)<br><br>For more information about the lgpolicy-list, go to <a href="https://groups.sas.upenn.edu/mailman/" target="_blank">https://groups.sas.upenn.edu/mailman/</a><br>listinfo/lgpolicy-list<br>*******************************************</div>
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