Thursday, January 12, 2017

Understanding National Origin Discrimination – Part 1

In 2000, 7,792 complaints of discrimination based on national origin were filed with the EEOC.  By 2002, in part because of the societal effects of 9/11, the number had increased to 9,046.  In 2010, 11,304 such complaints were filed. As issues related to immigration continue to be the focus of political and media attention, it seems likely that employers will be faced with instances and complaints of workplace discrimination and harassment based on national or ethnic origin. Effective management of those issues will require an understanding of what the law requires, careful oversight of employee behavior, and a measured reaction to employee complaints and concerns.
This post is the first of two, and will concentrate on the definition of national origin discrimination and the related requirements imposed on employers by Title VII and its state counterparts. Next week’s post will provide examples of common workplace scenarios involving workers’ national origin.  
The EEOC has recently issued new enforcement guidance on national origin discrimination that provide detailed explanations and examples, as well as a shorter, more accessible publication entitled “Questions and Answers: Enforcement Guidance on National Origin Discrimination.” Both publications can serve as a resource for HR professionals and in-house counsel responsible for EEO compliance and personnel best practices. Here are some highlights:
How national origin discrimination is defined. This form of discrimination includes less favorable treatment because of an applicant’s or employee’s actual or perceived country of origin or ethnicity, because of where an individual’s ancestors are from, or because of affiliation with an ethnic identity, cultural practice, or language.  Title VII also prohibits workplace harassment based on national origin, just as it prohibits harassment based on race, sex, or religion. Hiring or employment practices that have a disparate negative impact on individuals of a particular national origin may violate Title VII and comparable state laws.  Title VII’s national origin protections may overlap with protections from discrimination based on race, color and religion.
National origin, citizenship, and national security.  National origin and citizenship are not the same thing.  Federal law requires that all workers be authorized to work in the US, and some government, military, and government contractor jobs require citizenship, security screening, or both.  It is not discriminatory to require that applicants and employees verify that they are authorized to work in this country, or to enforce legitimate citizenship requirements.  Similarly, it is not discriminatory to enforce legitimate, legally mandated security screening requirements that include inquiries into foreign origin, travel, or relatives.  Note, however, that all authorized workers, regardless of citizenship, are protected by Title VII against unlawful discrimination.  
English fluency requirements and English-only rules.  In some circumstances, employers have legitimate business reasons for requiring that workers are fluent in English.  An English fluency requirement is only lawful, however, if fluency is necessary for the effective performance of the position.  It is generally not lawful to base hiring or employment decisions on the existence of an accent, unless the accent materially interferes with job performance.  Any policy that requires employees to speak only English at work risks violating Title VII if it applies at all times or if it is adopted for discriminatory reasons or enforced in a discriminatory way.  An English-only policy that is imposed in limited circumstances, when necessary to promote safe and efficient performance or business operations, does not violate national origin discrimination protections. 
Ethnic or national-origin based practices. Employers are generally not required to accommodate traditions or practices based on national origin or ethnicity.  Reasonable accommodation of religious practices is required, however, and it’s important to consider and understand whether a requested accommodation is ethnic or religious in nature. Lack of familiarity with religious customs or practices does not excuse an employer from its obligations of reasonable accommodation.  
Customer preference. Employers may not consider customer preference related to national origin (or any other protected class status) when hiring, making assignments, or taking other employment actions. 
Next week, we’ll focus on how national origin issues play out in the workplace and provide suggestions for lawful and effective employer response. 
Posted by Judy Langevin