In November 2016, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC characterizes national origin discrimination as 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.

The last time the EEOC comprehensively addressed national origin discrimination was in 2002. Since that time, there have been significant legal developments on issues ranging from human trafficking to workplace discrimination. The EEOC’s revised guidance sets forth the agency’s interpretation of the laws and regulations and explains how they apply to specific workplace situations. With the American workforce becoming increasingly ethnically diverse, it is important to remain mindful of potential issues that may arise. The guidance should be used as a tool for employer’s to ensure compliance with federal anti-discrimination laws.

The guidance makes clear that while an employer may have legitimate business reasons for making language-based employment decisions, it is important to ensure that these decisions do not violate Title VII. Employers are prohibited from basing employment decisions on an individual’s accent unless the ability to communicate in English is a requirement to perform job duties effectively and the individual’s accent materially interferes with that job performance. Likewise, a language fluency requirement is permitted only if fluency is required to effectively perform the position for which it is imposed. Policies that prohibit employees from speaking in their preferred language during meal periods or breaks may also violate Title VII.

According to the EEOC, employers may run afoul of Title VII by catering to the preferences of clients, customers, or even co-workers. Employment decisions based on the discriminatory preferences of others is itself discriminatory. Similarly, an employer may not assign employees to certain jobs, facilities, locations, tasks, or geographic areas; deny promotions; physically isolate employees; or otherwise segregate workers into jobs based on their national origin.

Employers and employment agencies may not engage in recruitment practices that have the purpose of discriminating based on national origin or that disproportionally limit employment opportunities based on national origin. The EEOC advises against exclusive recruitment by word-of-mouth because this practice may reinforce existing racial or ethnic makeup of the workplace. Employers are encouraged to use diverse recruitment sources in order to attract a diverse applicant pool.

In 2015, approximately 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination. As employment discrimination laws continue to develop, it is important to be aware of potential conflicts. If you have any questions about navigating these issues, our employment law attorneys here at Joseph, Hollander & Craft are willing and able to help.

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