[lg policy] Proposed EEOC Guidance on National Origin Discrimination Provides Clues to Agency’s Focus

[Harold Schiffman]

Proposed EEOC Guidance on National Origin Discrimination Provides Clues to
Agency’s Focus
Wednesday, June 29, 2016

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.
Role of the PEG

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.
Underlying Legal Framework

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on
race, color, religion, sex, and national origin.
Specific Issues

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.

The following highlights some of the common national origin discrimination
issues the EEOC investigates.
*1. Mistaken perception of someone’s national origin is not a defense*

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.
*2. When may ask for social security numbers?*

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.

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.
*3. Human trafficking*

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.
*4. When can accent be considered a factor for employment decisions?*

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.”
*5. When can English fluency be considered a factor for employment
decisions?*

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.
*6. Can employers require foreign language fluency?*

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