EEOC Updates Advice on National Origin Discrimination.
by Thomas A. Bowden
Situations posing a risk of national origin discrimination in the workplace are likely to multiply in coming years, as America addresses the continuing terrorist threat while accommodating ever larger numbers of workers having foreign birth or ancestry. [1] To help employers cope with these situations in compliance with laws against national origin discrimination, the Equal Employment Opportunity Commission has developed a new chapter in its Compliance Manual applying current laws to new situations arising in the workplace. [2]
"Generally, national origin discrimination means 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."[3] Besides discrimination based on country of birth, other closely related forms of discrimination are also banned:[4]
- Ethnic groups. It is illegal to discriminate against an employee for belonging to a certain ethnic group, as for instance if he or she is an Arab or a Gypsy.
- Physical, linguistic, or cultural traits. It is unlawful to discriminate against an employee whose physical, linguistic, or cultural traits are closely associated with a national origin group. For example, an employer may not discriminate against someone for wearing a headdress or turban unless business necessity dictates otherwise and a uniform, nondiscriminatory policy is adopted.
- Perception. Employers may not discriminate on the basis of an individual's perceived membership in an ethnic or national origin group, even if he or she is not actually a member. For example, a person who resembles an Arab in speech, mannerisms, or appearance must not be discriminated against even if he is not of Arab ethnicity.
- Race and religion. Although covered by other parts of Title VII, racial and religious discrimination often overlap with national origin discrimination. For example, a person who observes Muslim religious practices may be the victim of religious discrimination as well as adverse treatment based on the fact or perception that he or she is an Arab. Likewise, a Chinese person passed over for a waiter's job in a Greek restaurant would likely charge both race and national origin discrimination.
Although employers must make reasonable accommodations for their employees' religious practices, no such obligation exists for practices associated with different national origins. Thus, an employee whose headdress has religious significance must be allowed to wear it unless undue hardship would result. On the other hand, an employee whose headdress has only ethnic or national origin meaning could be prevented from wearing it, pursuant to a dress code applied uniformly to all workers in similar jobs. [5]
Obviously, employers may not screen potential hires based on national origin. Perhaps not so obviously, employers who rely on word-of-mouth for recruiting new employees may be engaging in national origin discrimination if the existing workforce lacks sufficient diversity to generate recruits from all national and ethnic groups. [6] Similarly, for example, union rules requiring new apprentices to be sponsored by current mechanics should be discontinued. [7]
Language.
About 18% of America's population speak a language other than English at home, and 4% of Americans speak little or no English. Because language is closely related to national origin, employers' policies and practices regarding language can create exposure to liability for national origin discrimination. [8]
If English proficiency is required for the effective performance of a job, then such a requirement is permissible. Such fluency requirements, however, must be tailored to each job, and a general requirement applying to a broad range of dissimilar positions is not allowed. For example, a person whose spoken English is good enough to qualify for a waiter's position in a restaurant may not have sufficient written English skills to qualify for a managerial position in the same restaurant, and an employer is permitted to take these differences into account. [9]
As an illustration, the Compliance Manual offers the example of Jorge, a Dominican national, whose spoken English is not good enough to sell home appliances in an exclusively English-speaking community. If Jorge applies for a job, the company should allow him to compete for any other job that does not require proficient English, such as a position in the stock room. [10]
Employers whose needs include fluency in more than one language may assign different employees to those jobs based on language proficiency without running afoul of national original laws. [11]
Some employers have instituted "English-only rules," restricting communication in other languages in the workplace. Such a rule must be justified by business necessity and must ban all languages other than English, not just one or two. Business necessity could include the need to communicate with customers or coworkers who speak only English, or to communicate during emergencies, or to enable an English-only supervisor to monitor her subordinates. An employer thinking of adopting such a rule should make sure to marshal evidence of business necessity. [12]
As an example, the Compliance Manual offers the case of an employer that banned spoken languages other than English throughout the workplace, even in the cafeteria and when employees spoke privately on the telephone during work breaks. The employer tried to justify the policy as promoting better employee relations but could produce no proof that poor relations existed or that speaking English everywhere improved existing relations. This employer violated Title VII. [13]
Foreign accents may be the basis for adverse employment decisions only when the accent materially interferes with the employee's ability to communicate orally in English. Thus, a concierge with a heavy Ghanaian accent cannot demand to remain in his position when numerous customers complain they cannot understand him when he discusses their travel arrangements and gives directions to tourist sites. [14] Generally speaking, however, adverse customer reaction to ethnic or national characteristics affords no lawful basis for employment decisions. [15]
Security.
Employers may not require workers of, say, Middle Eastern descent to undergo any more thorough background check than is conducted for employees of any other national origin. By the same token, an employee of Iranian descent could not be discharged from his position as a bus driver because the passengers complained of nervousness due to Middle Eastern terrorist activity in the city. [16]
Harassment.
About one third of all national origin discrimination claims include charges of harassment, such as ethnic slurs, workplace graffiti, and other conduct creating a hostile environment based on an individual's birthplace, ethnicity, culture, or foreign accent. Such conduct may be "merely offensive" if it is isolated, but if it becomes severe and pervasive, adversely affecting the victim's performance, it will violate Title VII. [17]
As an example, the Compliance Manual offers Muhammad, an Arab-American car salesman whose fellow workers regularly call him "camel jockey," "the ayatollah," and "the local terrorist," and embarrass him in front of customers by claiming he is incompetent. Muhammad reports the conduct to high management but gets no response, and as a result he experiences great difficulty performing his job. Title VII has been violated by the creation of a hostile work environment. [18]
An employer who knows or should know of harassing behavior may be liable for national origin harassment by supervisors, coworkers, and even non-employees, if the employer fails to take corrective measures. Policies against such harassment and procedures for reporting and eliminating such behavior are important parts of an employer's anti-harassment efforts. [19]
The Compliance Manual offers an interesting example of how non-employee conduct can expose an employer to liability for harassment. Charles, according to this example, is a senior citizen from the neighborhood who is allowed to visit the employer's senior living facility even though he is neither a paying resident nor an employee. Charles yells derogatory comments about Asians to Cheryl, a Filipino employee, and has even pushed and tripped her. The facility must protect Cheryl by controlling Charles's conduct, even to the point of refusing to permit Charles onto the premises; if the company takes no action, it will be liable to Cheryl for Charles's harassment. [20]
Citizenship.
Title VII's prohibition against national origin discrimination protects citizens and non- citizens alike. Although requiring employees to be U.S. citizens is not per se a violation of Title VII, using such a requirement as a pretext for national origin discrimination is a violation. [21] For instance, a company that permits unskilled laborers to work without citizenship papers but strictly requires citizenship for skilled craft workers is impermissibly discriminating on the basis of national origin. [22] Likewise, a company that hires non-citizens from northern European countries while rejecting non-citizens from Mexico is violating Title VII. [23]
Employers should also be aware that decisions based on citizenship may be governed by the Immigrant Reform and Control Act of 1986, the Fair Labor Standards Act, and special visa programs such as H-1B and H-2A. [24]
Related Issues.
Retaliation. Employers may not discriminate against employees who file a charge of discrimination or cooperate in the investigation of a coworker's charge. So, for example, an employee who gives testimony supporting a coworker's charge of discrimination cannot be deprived of overtime assignments in favor of workers who did not give such testimony. [25]
Foreign employers. Generally, foreign employers doing business in the United States are subject to Title VII to the same extent as American employers. Even when foreign employers are permitted by treaty to discriminate in favor of their home country's own citizens, however, they may not discriminate on the basis of national ancestry. Title VII does not apply to employment actions taken by foreign employers overseas. [26]
Association. Title VII also prevents an employer from discriminating against an employee for marrying or associating with persons of a disfavored nationality or ethnicity. [27]
[1] One in ten Americans is foreign born, and one in eight is Hispanic. Immigrants compose 12% of the workforce, and almost 40% of new jobs are filled by immigrants.
[2] This chapter of the EEOC Compliance Manual is available on the internet by accessing www.eeoc.gov
[3] Compliance Manual, Sec. 13-II. All further references in this article are to the Compliance Manual. Because most readers' access is likely to be through the internet, which does not provide pagination for the Manual, this article will refer to the numbers assigned to particular sections, subsections, and examples in the Manual.
[4] Sec. 13-II.
[5] Sec. 13-II.
[6] Sec. 13-III.A.1.
[7] Sec. 13-III.B.2, Example 8. Title VII applies not only to conventional employers but also to labor organizations and employment agencies.
[8] Sec. 13-V.
[9] Sec. 13-V.B.1.
[10] Sec. 13-V.B.1, Example 18.
[11] Sec. 13-V.B.2.
[12] Sec. 13-V.C.1.
[13] Sec. 13-V.C.1, Example 19.
[14] Sec. 13-V.A, Example 17.
[15] Sec. 13-III.B.1.
[16] Sec. 13-III.B.1.
[17] Sec. 13-IV.A.
[18] Sec. 13-IV.A, Example 12.
[19] Sec. 13-IV.B.
[20] Sec. 13-IV.B, Example 15.
[21] Sec. 13-VI.A.
[22] Sec. 13-VI.A, Example 23.
[23] Sec. 13-VI.A, Example 22.
[24] Sec. 13-VI.A.
[25] Sec. 13-VII.A., Example 24.
[26] Sec. 13-VII.B, Example 25.
[27] Compliance Manual, footnote 17.
Reprinted by permission from Matthew Bender's "Labor and Employment Bulletin."
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