EEOC Issues Proposed Enforcement Guidance on National Origin Discrimination

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently released a proposed enforcement guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Proposed Guidance”).

While the Proposed Guidance is fairly long, key provisions are as follows:

  • “National origin” includes place of origin, as well as ethnicity and one’s physical, linguistic, or cultural traits of a particular national origin group. Some examples of this include national origin groups, such as “Hispanics,” “Arabs,” and “Roma.” Additionally, discrimination based on perceived national origin is prohibited.
  • Title VII prohibits “intersectional” discrimination, which occurs when someone is discriminated against due to the combination of two or more protected classes. For example, discrimination against Asian women would be prohibited, even if the employer has not also discriminated against Asian men or non-Asian women.
  • Title VII prohibits employers from using certain recruitment and hiring practices, such as relying on word-of-mouth advertising, sending job postings solely to ethnically or racially homogenous areas or audiences, or limiting assignments and promotional opportunities, if the intention is to exclude or discriminate based on national origin.
  • Discrimination based on one’s accent is prohibited unless the individual’s accent “interferes materially with job performance.”
  • Language fluency requirements and English-only policies are prohibited unless job related and consistent with business necessity, such as to effectively perform a specific position or job.

The EEOC is seeking public input on this Proposed Guidance until July 1, 2016. When finalized, the enforcement guidance will express official agency policy. We will provide updates when the enforcement guidance is issued.

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