Last month, the Equal Employment Opportunity Commission (EEOC) released an updated Enforcement Guidance on national origin discrimination under Title VII. The Guidance is used by EEOC investigators to help determine whether a particular employment practice violates legal requirements. It also provides employers with information as to how the agency is likely to respond to various charge scenarios. The national origin discrimination Guidance had not been updated since 2002.

The new Guidance contains no monumental changes in the EEOC’s position with regard to national origin discrimination charges. It does discuss common situations where the investigator may not be able to draw sharp distinctions between race, religion and national origin with respect to claims of discrimination or harassment. In those situations, the Guidance instructs the investigator to review the claims under all three protected classifications.

The Guidance also discusses what the EEOC refers to as “intersectional” discrimination. This involves employer practices that discriminate against persons based on national origin plus another category. For example, an employer could decline to hire Hispanic females, while exhibiting no such bias against Hispanic men or non-Hispanic women. The EEOC would consider such practice to constitute both national origin and sex discrimination.

The EEOC also sets forth its position that in many if not most situations, employers that engage in human trafficking also violate Title VII. If persons are brought to the U.S. to engage under coercion in a particular job, the Guidance states that they were likely identified for this abuse based on their national origin as well as other protected categories. The new Enforcement Guidance takes immediate effect and information about the new instructions can be found at https://www.eeoc.gov/eeoc/newsroom/release/11-21-16.cfm.