the situation
National origin discrimination can be a bit tricky for employers-what exactly does it mean? Does it just have to do with the country in which one was born? What about people that share a language or culture, but not necessarily a country of origin? And how does race come into play?
the ruling
On November 21, 2016, the EEOC announced the issuance of its updated enforcement guidance on national origin discrimination (found here). This guidance was issued following a period of public comment after the EEOC issued proposed guidance back in June. According to the EEOC, the guidance is meant to address significant legal developments since the last compliance manual on the topic was issued in 2002, including topics ranging from human trafficking to workplace harassment.
The EEOC explains that national origin discrimination “means 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.”
A place of origin can be a country or a geographic region—even if that region was never actually a country. National origin discrimination also includes discrimination because of an individual’s national origin group or ethnicity or certain traits and, importantly, covers discrimination based on perceived national origin (even if that perception is wrong) or based on someone’s association with another of a certain national origin.
The EEOC acknowledges that national origin discrimination often overlaps with other kinds of discrimination, like race or religious discrimination. “Intersectional discrimination” refers to when an individual is discriminated against because of the combination of two or more protected characteristics (like race and national origin).
In its new guidance, the EEOC provides many examples of what may constitute discrimination that are worth employers’ review. Additionally, the EEOC includes a section called “Promising Practices,” essentially ways that an employer can potentially avoid violations of Title VII based on national origin discrimination. Some of the examples of these “promising practices” are:
• Recruitment—using a variety of recruiting methods instead of simply just word-of-mouth recruiting, which may result in the exclusion of individuals from different national origin groups
• Hiring, promotion, and assignment—establish written, objective criteria and apply the criteria consistently; ask similar questions of all candidates
• Discipline, demotion and discharge—have objective, job-related criteria for determining what actions or performance issues will result in discipline, demotion or discharge, perhaps using a progressive discipline policy; record reasons for actions taken-and share the reasons with affected employees
• Harassment—share anti-harassment policies with all employees, including temps and contract workers; make sure employees know what the complaint process is if they experience harassment
the point
Employers need to make sure that their managers and supervisors understand what all comes under the umbrella of national origin discrimination—and that it is broader than simply the country of one’s birth. Additionally, employers should consider these suggested “promising practices,” which are not just helpful for avoiding claims of national origin discrimination, but any form of discrimination which may be asserted by employees.
Originally published on Virginia Employer Law Blog by Elaine Inman Hogan on November 30, 2016.