New Guidance on National Origin Discrimination in Employment

Very recently, the EEOC published new enforcement guidelines regarding national origin discrimination. The purpose of this new guidance is to address the more current cultural issues and developments in the law relative to national origin. Here are a few of the issues addressed in these new guidelines.

Discrimination based on the perception of national origin

The new guidance reiterates Title VII’s ban on discrimination based on national origin, when that bias is based on the perception that someone is of a particular national origin. For example, even if the assumption is incorrect, mistreatment of an employee because he or she is perceived to be from the Middle East is illegal.

Associational discrimination remains illegal

National origin discrimination also includes so-called “associational discrimination,” which refers to treating someone less favorably merely because of his or her association with someone else who is of a particular national origin. In other words, if an employee is known to associate with a Middle Eastern employee, discriminating against that employee because of that association is illegal.

Other principles of discrimination are reaffirmed

National origin bias in recruiting practices is also illegal, including practices that result in a disparate impact on a certain nationality, even if unintentional. “Word of mouth” recruiting is an example of a potentially illegal practice that often perpetuates the hiring of certain groups of employees. Employers are also prohibited from discriminating based on national origin in order to satisfy the preferences of customers, clients or other employees.

Accommodations are not required based on national origin practices

While religious beliefs are protected under Title VII, requiring employers to accommodate sincerely held religious beliefs, there is no obligation to accommodate for national origin practices. This can be a fine line, however, as many practices based on national origin go hand-in-hand with certain religious practices.

Issues regarding language are addressed in the new guidance

While employers may have legitimate reasons for imposing certain language requirements in the workplace, the EEOC has issued guidance on several key issues relating to language policies. First, employment decisions cannot be based on an accent, unless that access “materially interferes with job performance” and the ability to communicate in spoken English is a requirement for performing the job duties effectively.

Next, a language fluency requirement is allowed when fluency is required for the effective performance of that position and this requirement is included in a written job description. Also, a language-restrictive policy should not apply all periods of time an employee spends in the workplace. In other words, a policy that restricts language during break time, meals, etc. is typically improper.

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.

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