United States: The EEOC Issues New Guidelines on National Origin Discrimination

The growing ethnic diversity of the U.S. work force, coupled with the emotionally charged world events of the past year, has made claims of national origin discrimination a front-burner issue for many employers. Responding to an increasing number of these claims, the Equal Employment Opportunity Commission ("EEOC") recently issued a new set of guidelines interpreting the national origin discrimination provisions of Title VII of the Civil Rights Act of 1964. These guidelines indicate how the EEOC will apply Title VII’s prohibition against national origin discrimination to a variety of factual situations and suggest steps that employers can take to prevent or respond to this type of discrimination. This Legal Alert summarizes some of the major provisions of the new guidelines.

The EEOC defines national origin discrimination as treating individuals less favorably because they (or their ancestors) come from a particular place or belong to a particular ethnic group. Treating someone differently because he or she is associated with someone of a particular national origin may also constitute national origin discrimination. Additionally, national origin discrimination may include discrimination based on physical, linguistic, or cultural traits associated with a national origin group. For example, discrimination based on an individual’s traditional African style of dress may constitute national origin discrimination.

Title VII prohibits employers from basing employment decisions on national origin. The new guidelines make it clear that this prohibition extends to employment decisions based on coworker or customer discomfort or preference concerning an individual’s national origin. However, foreign corporations operating in the United States may discriminate in favor of their own nationals when permitted to do so by a treaty.

Harassment based on national origin violates Title VII when it is so severe and pervasive that it creates a hostile or abusive work environment. Harassment based on national origin can take the form of ethnic slurs, graffiti, or other offensive conduct directed towards an individual’s birthplace, foreign accent, culture, or ethnicity. A hostile environment may be created by the conduct of supervisors, coworkers, or nonemployees such as customers.

Linguistic characteristics are closely related to national origin, and basing employment decisions on a qualified individual’s foreign accent or limited ability to speak English may constitute national origin discrimination. Not all employment decisions based on linguistic characteristics will violate Title VII, however. The EEOC guidelines state, for example, that a business with a diverse clientele may lawfully assign work based on an employee’s ability to speak a foreign language. In addition, an employment decision based on a foreign accent will not violate Title VII if the individual’s accent materially interferes with his or her ability to perform a job. For example, if effective communication in English is required to perform a job and an individual’s accent materially interferes with the ability to communicate in English, rejecting the individual for the job because of the accent would not violate Title VII.

Similarly, employers may adopt English-only rules without violating Title VII in certain circumstances. An English-only rule must be justified by "business necessity" such as the need to communicate with customers or situations where speaking a common language promotes safety. However, English-only rules are unlawful when they are adopted with the intent to discriminate. A policy that prohibits speaking only certain foreign languages in the workplace would also be discriminatory. English-only rules that apply only during the performance of specific job duties but not to casual conversations when employees are not performing those duties may not violate Title VII.

Although Title VII does not prohibit discrimination based on citizenship, a citizenship requirement for employment will violate Title VII if it is a pretext for national origin discrimination or is part of a wider scheme of national origin discrimination. Significantly, Title VII protection extends to foreign nationals employed in the United States, regardless of whether they have the appropriate work authorization, although employers may lawfully reject undocumented aliens for employment. U.S. corporations operating abroad should be aware that Title VII applies to their employees outside the United States who are U.S. citizens, but not to foreign nationals employed outside the United States.

The new EEOC guidelines recommend that employers adopt and enforce uniform, nondiscriminatory employment policies to minimize the risk of liability for national origin discrimination. The guidelines also encourage the adoption of a policy prohibiting harassment based on national origin and providing clear examples of inappropriate conduct. The guidelines indicate that an appropriately worded and uniformly enforced policy against national origin harassment, like an appropriate sexual harassment policy, can effectively bar some discrimination claims. Employers that do not currently have policies addressing national origin discrimination and harassment should consider revising their policies to cover these subjects.