The Equal Employment Opportunity Commission recently issued updated guidance regarding national origin discrimination for the first time since 2002. The new guidance defines 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.” Employers should take heed of several important points emphasized by the new guidance, including (but not limited to):
- All foreign nationals who legally are working within the United States are protected by Title VII and have standing to bring a Title VII discrimination claim, regardless of their citizenship status;
- National origin discrimination may exist in the form of an “association” claim, for example where an employer treats an employee less favorably because the employee associates with someone of a particular national origin.
- National origin discrimination may exist in the form of a “perceived as” claim, for example where the employer treats an employee differently because of what it believes the employee’s national origin to be, even if that belief is ultimately incorrect.
- An employer may not discriminate on the basis of national origin even if the employment decisions are made due to the discriminatory preferences of a client, customer, or another employee.
- Employers should be careful making employment-related decisions based on language and/or accent. An employer making a decision based upon language or accent will be required to show that the ability to communicate in English with a specific accent is required to perform the job duties “effectively” and the employee’s accent “materially interferes” with that performance.
- Employers are not required to accommodate national origin traditions. However, religious beliefs – which are often related to national origin – must be accommodated unless doing so imposes an undue hardship.
The EEOC has also issued two short, user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language.