On November 21, 2016 the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on national origin discrimination, its first such update on the issue since its 2002 compliance manual. The Guidance provides in-depth information as to how “national origin discrimination” is defined, explains how the law would apply in specific workplace situations, and provides a question and answer publication on the guidance.
The EEOC broadly defines “certain place” as including a country, a former county, or even a region which never became a county but is closely associated with a particular national original group (for example Kurdistan or Acadia). The EEOC describes discrimination against a place of origin as involving:
- Perception: discrimination based on the belief that an individual is from a particular country or belong to a particular nation origin group;
- Association: discrimination based on an individual’s association with someone of a particular national origin;
- Citizenship Status: discrimination based on an individual’s citizen status.
With respect to national origin discrimination based on linguistic characters or accents, the EEOC clarifies that language proficiency in English in permissible, however, only when “required for the effective performance of the position for which it is imposed.” For instance, “an individual may be sufficiently proficient in English to qualify as a research assistance but, at that point in time, may lack the fluency to qualify as a senior scientific writer who must communicate complex scientific information in English.” The EEOC cautions against applying uniform fluency requirements to a broad range of positions or requiring a greater degree of fluency than necessary in certain positions.
The Guidance concludes with several practices that employers can implement to reduce the risk of discriminating against employees or applicants on the basis of national origin:
- Using a variety of recruitment methods to attract a diverse applicant pool;
- Establishing written criteria for evaluating candidates; communicating the criteria to prospective candidates; and applying those criteria consistently to all candidates.
- Developing objective, job-related criteria for identifying unsatisfactory performance or conduct that can lead to discipline;
- Clearly communicating to employees through policies and actions that harassment will not be tolerated.