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New EEOC Guidance on National Origin Discrimination Addresses Issues Arising from Diverse Workforce

  • January 3, 2003

With one in ten Americans born in another country and 12% of the workforce composed of immigrants, the health care industry faces unprecedented opportunities and challenges in managing an increasingly diverse workforce. For many health care employers, the shortage of skilled professional staff has been eased by an influx of foreign-born workers, resulting in national origin, cultural, ethnic, linguistic, and religious diversity. As a result, preventing and remedying national origin discrimination in the health care workplace is a major concern.

Addressing these changes, 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.

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 coworkers 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.

©2003 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.

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