EEOC Updates National Origin Discrimination Guidance
Posted 9 January 2017 12:00 AM by Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance
The American workforce is progressively becoming more diverse. According to the Equal Employment Opportunity Commission (EEOC), the largest percentages of immigrants to the U.S. are now from Asia and Latin America. Immigrant workers are represented in every occupation in the U.S. Because of this increasing diversity, the EEOC recently issued an updated guidance to inform employers and employees how it interprets, approves and/or disapproves of court interpretations of national origin discrimination cases. This is the EEOC's first update on the national origin guidances since 2002 and reflects the EEOC's strategic plan for the next four years, which will focus on protecting vulnerable workers, including immigrant, migrant workers and underserved communities with discrimination.
What is National Origin Discrimination?
The EEOC guidance further defines national origin and what constitutes discrimination under Title VII of the Civil Rights Act of 1964. Title VII protection of Civil Rights Act of 1964 offers protection against national origin discrimination and is extended to all employees and applicants seeking employment in the US, regardless of their place of birth, authorization to work, citizenship or immigration status. National origin discrimination is defined by the EEOC as "treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination can also involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin."
The national origin discrimination rule protects every employee or applicant against discrimination based on his or her national origin, including if they are nor if they are not Americans. The EEOC also added Native Americans to the list of those protected under national origin discrimination. The rule prohibits employers from discriminating based on incorrect information or conclusions about an individual's (or his or her ancestors) ethnicity or nationality. Title VII prohibits harassment based on national origin, which could include ethnic slurs, ridicule, intimidation, workplace graffiti or physical violence towards an individual because of their birthplace, ethnicity, culture, language, dress or accent. The EEOC addressed the many questions that apply to national origin discrimination in a detailed frequently asked questions and a fact sheet created specifically for small businesses.
National Origin Discrimination Rules for Recruitment and Hiring
The EEOC guidance includes a list of employment practices which may help reduce the risk of being non-compliant, including:
- Employers and employment agencies must not discriminate by only referring applicants or employees who are of a particular national origin group
- Employers should recruit from different sources to attract a diverse applicant pool
- Organizations should establish written objective criteria for evaluating potential candidates as well as how to communicate these criteria to the job pool
- Companies should develop objective, job-related criteria for unsatisfactory performance or conduct that can result in discipline, demotion or discharge
Title VII national origin discrimination does not prevent an employer from verifying a newly-hired noncitizen work authorization. Employers must still continue to follow the Form I-9 process to verify identity and work authorization of newly hired employees. Employers are not allowed to treat individuals differently during the authorization process based on an applicant's national origin.
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