Proposed Update on National Origin Discrimination EEOC Guidance

It appears the EEOC is on a roll when it comes to updating their discrimination guidelines, which is a good thing. The latest area of employment discrimination to be rehashed is national origin discrimination, which has not been revised in at least 14 years. These proposed revisions will be made available for public comment in early July. Here are some of the highlights.

How do the regulations define National Origin?

According to the federal regulations, discrimination based on someone's national origin involves discrimination “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.” The EEOC interprets this definition rather broadly to include discrimination based on:

  • marriage to or association with persons of a national origin group
  • membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
  • attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
  • the individual’s name or spouse’s name being associated with a national origin group.

A few of the new issues raised in the proposed guidelines

There are new issues that are worth noting with regard to national origin discrimination, including accents, social security number screening, customer preference, English-only rules, job segregation and perceived national origin. While these issues may not be unfamiliar to some, these are areas that employees should be on the lookout for if they believe discrimination is at play in their workplace.

Discrimination based on accents

The consideration of accents in employment matters is questionable as accents and national origin are often linked. At this point, it is not unlawful to make decisions based on someone's accent, it must be shown that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”

English-only rules may be subject to scrutiny

Work rules or practices requiring employees to speak only English may be national origin discrimination, considering that an individual's primary language is often intertwined with cultural and ethnic identity. According to EEOC guidelines, any rule that requires workers to speak English even during lunch, breaks, and other personal time violates Title VII.

Social Security Number Screening

Employers who have a policy or practice of screening out job candidates or new hires who do not have a Social Security number may now face allegations of national origin discrimination. This type of claim would primarily be seen in situations where work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected by the screening process.

Customer Preference is still not an acceptable basis for disparate treatment

Employers are not permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII, whether it's because of race, gender, national origin or any other protected characteristic. The EEOC recognizes that company “look” or “image” policies can often act as a substitution for discriminatory customer preferences.

Job Segregation due to national origin is forbidden

An employer is not allowed to use national origin as the basis for assigning or refusing to assign employees to specific positions, locations, or geographic areas. It is also unlawful for an employer to physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin. This happens more often than you might think.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

Categories: EEOC Claim, Employment Law
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