Search form

New EEOC Guidance on National Origin Discrimination Addresses Dramatically Diverse Workforce

By Paul J. Siegel
  • December 20, 2002

With one in ten Americans born in another country and 12% of the workforce composed of immigrants, the Equal Employment Opportunity Commission has issued a new guidance on "National Origin Discrimination," which is prohibited under Title VII of the Civil Rights Act of 1964, as amended.

Quoting statistics from the 2000 census, the guidance states that the largest numbers of recent immigrants have come from Asia and Latin America. Immigrant workers counted more than 15 million in 1999 and filled more than one-third of all new jobs created between 1990 and 1998. As a result, preventing and remedying workplace discrimination involving issues of national origin has become a priority for many employers.

Explaining national origin bias and emphasizing "best practices," the new section defines prohibited conduct as "treating someone less favorably because that individual (or his or her ancestors) is from a certain place or belongs to a particular national origin group." The guidance is designed to assist EEOC personnel in investigating and analyzing charges alleging national origin discrimination in hiring decisions, harassment, and language issues. According to the press release, the guidance, along with a new web page and a Q&A fact sheet, is "part of the EEOC's proactive efforts to prevent workplace discrimination through education, outreach and technical assistance to the employer and labor communities."

Using examples of conduct that are both permissible and prohibited, the section on language covers accent discrimination, fluency requirements, and English-only rules. In keeping with prior interpretation and court rulings, the guidance reiterates that employers may consider English proficiency and English-only workplace rules without violating Title VII, as long as these requirements are tailored to meet specific job requirements. The commission cited the following examples as situations justifying an English-only rule: for communications with customers, co-workers, or supervisors who only speak English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which the rule is needed to promote efficiency; to enable an English-speaking supervisor to monitor the performance of an employee whose job duties require communication with co-workers or customers. Similarly, a "best practices" approach for an English-only rule would take into consideration whether there are safety justifications, whether it is necessary for effective employee supervision and communication with customers, and the level of English proficiency of workers affected by the rule.

According to the EEOC, harassment claims in national origin discrimination charges doubled over the past ten years, with nearly 2,700 charges of national origin harassment filed in fiscal year 2002. To be actionable under Title VII of the 1964 Civil Rights Act, harassment must be severe and pervasive, rather than "merely offensive," the commission explained using examples of illegal conduct to illustrate the difference. According to the guidance, "The most important step for an employer in preventing harassment is clearly communicating to employees that harassment based on national origin will not be tolerated and that employees who violate the prohibition against harassment will be disciplined."

Editor's Note: The guidance and Q & A fact sheet are available on the EEOC's website. Jackson Lewis attorneys are available to answer questions and to discuss policies and practices that comply with the law against national origin discrimination while preserving the business and patient care goals of facility management. For more information, please contact the attorney with whom you regularly work.

©2002 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

October 18, 2019

Pay the Piper – California Employers Pressed to Pay Arbitration Fees or Risk Harsh Consequences

October 18, 2019

California employers may face harsh consequences for failing to pay arbitration fees on time under a bill (Senate Bill 707) signed by Governor Gavin Newsom on October 13, 2019. The new law go into effect on January 1, 2020. Under the new law, if an employer fails to pay fees required for the commencement or continuation of an... Read More

October 15, 2019

New California Law Attacks Mandatory Arbitration Again … But Is It More Bark Than Bite?

October 15, 2019

California has joined a number of states in passing legislation purporting to prohibit mandatory arbitration agreements for sexual harassment and other claims. Such laws have gained popularity in the wake of the #MeToo movement, but are subject to challenge under Federal Arbitration Act (FAA) preemption principles. (See our articles... Read More

October 15, 2019

Third-Party Harassment and Discrimination: The Customer Isn’t Always Right

October 15, 2019

As fiscal year 2019 ends for the Equal Employment Opportunity Commission (EEOC), it has announced it is pursuing several new discrimination suits, including one alleging a casino failed to protect female staffers from sexual harassment by patrons. Sexual misconduct and harassment have been in the national spotlight more than ever and... Read More

Related Practices