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EEOC Issues Enforcement Guidance on National Origin Discrimination

Published:  December 2, 2016

As business owners, upper management and HR professionals are aware, the Equal Employment Opportunity Commission (“EEOC”) is a federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee based upon an individual’s race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, disability or genetic information.

The EEOC recently issued its Enforcement Guidance on National Origin Discrimination (“Guidance”).  At the outset, the EEOC 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”.  Of particular interest to employers is the Promising Practices that the EEOC includes in the Guidance.  The EEOC states that use of the Promising Practices does not guarantee that an employer will be insulated from liability on a claim of national origin discrimination, however, implementation of the practices may help reduce the risk of violations.

The Promising Practices cover the areas of recruitment, hiring, promotion and assignment, discipline, demotion and discharge, and harassment.  The EEOC examines each area in detail:

Recruitment

The EEOC advises against simple word of mouth recruiting tactics as it could magnify any homogeneity in the workplace and lead to a possible national origin discrimination claim.  The EEOC advises employers to use a variety of recruitment techniques, including:  newspapers of general circulation, as well as those aimed at groups underrepresented in the workforce; online postings, job fairs, open houses, publicly posting job openings with a variety of community-based organizations as well as widely-distributed sources; conducting outreach through professional associations and search firms; recruiting from internship and scholar programs; and referrals using in-person connections.

According to the Guidance, employers should also use language indicating they are an “equal opportunity employer” in job postings.  Employment advertisements should also notify prospective applicants of all qualifications necessary for the position, including any qualifications related to language ability.

Hiring, Promotion and Assignment

The Guidance recommends that employers have written, objective criteria for evaluating candidates, that employers communicate the criteria to prospective candidates and, further, that employers apply the objective criteria consistently to all candidates.  The objective criteria used by employers for employment decisions should be tied to the employer’s business needs.  Using objective criteria will also ensure that all individuals are given an equal opportunity when being considered for open positions, assignments and promotions.

The EEOC recommends asking similar questions of all applicants during the interview process and limiting inquiries to matters directly related to the position in question.

Discipline, Demotion and Discharge

The Guidance recommends objective, job-related criteria when identifying unsatisfactory performance that will result in employee discipline.  The EEOC embraces the use of progressive discipline policies that have conduct standards and performance expectations that provide an employee the opportunity to correct the behavior prior to further discipline or discharge.  If languages other than English are spoken in the workplace, the EEOC recommends taking proactive steps to ensure that all employees understand the discipline policies, including translating the policy into the languages spoken by employees.

The EEOC recommends carefully documenting the business reasons for disciplinary or performance-related actions and sharing those reasons with the affected employees.  The EEOC further advises having more experienced managers monitor the actions of inexperienced managers when addressing difficult performance issues.

Harassment

The Guidance maintains that the most important step for an employer in preventing a hostile work environment claim is by clearly communicating to employees through policies and actions that harassment will not be tolerated and that employees who violate such policies will be disciplined.  An employer’s policies and practices will only be effective if all employees understand the policies, so employers should consider translating the policies into the languages spoken by all employees, offering training on the policies in those languages and offering interpreters or other language assistance so that all employees can report harassment confidentially.

The EEOC further recommends that all managers be trained to identify and respond to harassment, including the importance of proactively addressing conduct that does not initially violate Title VII but may, over time, rise to the level of actionable harassment.

In conclusion, the EEOC makes clear that it views discrimination based upon national origin as important given the increasing ethnic diversity of the American workforce.  In order to ensure compliance, business owners, upper management and HR professionals should periodically review their employment policies to make sure they are compliant with current laws.

If you have any questions regarding the EEOC’s Enforcement Guidance on National Origin Discrimination or any other employment law matter, please contact the attorneys at Royal, P.C.

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