Earlier this month, the Equal Employment Opportunity Commission (EEOC) released a draft of its new proposed enforcement guidance regarding national origin discrimination under Title VII – the first guidance it has issued on this topic since 2002. While this guidance is still in draft form and may still be revised following the close of the public comment period (in early July), it is helpful in providing employers a sense of the EEOC’s current enforcement concerns and priorities regarding national origin discrimination. 

Title VII, as employers are well aware, prohibits discrimination on the basis of national origin, which includes both discrimination based on an individual’s or his ancestor’s place of origin (e.g., another country), and discrimination based on an individual’s national origin group or ethnic group (e.g., Hispanic or Arab). National origin discrimination includes discrimination:

• Involving the perception that an individual is from one or more particular countries, or belongs to one or more national origin groups;
• Against an individual because she has physical, linguistic, and/or cultural characteristics closely associated with a national origin group;
• Against an individual because of his association with someone of a particular national origin; and
• Based on an individual’s citizenship status if it has the purpose or effect of discriminating based on national origin.

As the EEOC’s draft guidance notes, however, federal courts have not always been consistent in interpreting these prohibitions or applying the law to particular factual scenarios. The EEOC characterizes its draft guidance as an attempt to analyze how courts have interpreted the law, state the EEOC’s positions, and explain these positions with analysis and concrete examples. In particular, the EEOC’s draft guidance reiterates and provides further clarification on its positions on the following issues:

1. Overlapping claims and intersectionality. As the EEOC’s earlier guidance noted, because a national origin group is often associated (or perceived to be associated) with a particular religion or race, national origin discrimination often overlaps with race, color, and/or religious discrimination, and plaintiffs with national origin claims often have bases to assert these other claims. In its new guidance, the EEOC expands on this concept and states that Title VII also prohibits “intersectional” discrimination, which occurs when someone is discriminated against because of the combination of two or more protected bases. For example, Title VII prohibits discrimination against Asian women, specifically, even if the employer does not discriminate against Asian men or non-Asian women.

2. Human Trafficking. The EEOC’s new guidance addresses a number of scenarios in which employers may be liable for national origin discrimination or harassment, as well as other potential claims, if employees from another country who are recruited to work for the employer in the United States (whether legally or illegally), are subjected to different and less favorable working conditions than other employees not from that country or to harassment based on their national origin.

3. Prohibited employment practices.

• Employers may not use recruitment practices that exclude people based on national origin. Employers also may not request that an employment agency or staffing firm refer only employees of a particular ethnic group. Employers and staffing firms may be held jointly liable for such discrimination.
• Employers may not discriminate against candidates in decisions regarding hiring, promotion, and job assignments based on national origin. The discriminatory preferences of coworkers, clients, or customers will not justify such discriminatory actions.
• Rules and policies regarding discipline, demotion, and discharge must be nondiscriminatory and enforced without regard to national origin.
• Harassment based on national origin is prohibited. Note that, as the new guidance clarifies, a language-restrictive policy, including an English-only rule, may contribute to a hostile work environment, especially if broad or imposed with insufficient justification.

4. Language Issues.

• An employment decision may be based on an individual’s accent only if there is evidence that (1) effective spoken communication is required to perform the individual's job duties and (2) the individual’s accent materially interferes with his or her ability to communicate.
• A fluency requirement is generally only permissible if required for the effective performance of the job at issue.
• A rule requiring that employees speak English only in the workplace violates Title VII if it is adopted for a discriminatory reason, if it is applied in a discriminatory manner, or if it has an adverse effect on employees of a particular national origin. The EEOC’s new guidance clarifies its position that English-only rules that apply at all times – including lunch, breaks, and personal time – are presumptively unlawful. To be lawful, English-only (or other restrictive language) rules must be job-related and consistent with a business necessity.   

5. US Citizenship requirements.

• A US citizenship requirement for employees violates Title VII where it has the purpose or effect of discriminating against individuals based on national origin. (Title VII is not violated, however, when US citizenship is required for certain positions by federal law).

In sum, the EEOC’s general prohibitions on national origin discrimination and harassment have remained essentially the same as in its 2002 guidance, but as this new draft guidance demonstrates, the application of these prohibitions to particular factual scenarios is not always clear. Employers of all types are urged to contact employment counsel to determine when and how Title VII’s national origin prohibitions may apply before taking an employment action or instituting a policy or requirement that may disproportionately or adversely affect employees or applicants of a particular national origin. We will also continue to monitor the EEOC’s guidance in this area and provide further updates once the final guidance is released.