Equal Employment Opportunity Commission Provides Further Guidance on Prohibited National Origin Discrimination
As most employers have long been aware, national origin discrimination is prohibited by Title VII of the Civil Rights Act of 1964 ("Title VII"). This means that employers generally may not make employment decisions based on an individual's birthplace; ancestry; culture; native language; accent (unless the accent affects the individual's ability to perform the job); marriage or association with people of a national ethnic group; membership or association with an ethnic cultural organization; attendance or participation in schools, churches, temples or mosques that are generally associated with a specific ethnic group; or name that is associated with a specific ethnic group.
One of the effects of the September 11, 2001 terrorist attacks has been a proliferation of claims of national origin discrimination. The Equal Employment Opportunity Commission ("EEOC") reports that claims of religious discrimination based on Muslim beliefs more than doubled in the year following the attacks. In the year since September 11, 2001, 654 charges were filed nationwide alleging discrimination or retaliation related to the terrorist attacks by persons who self-identify or are perceived as Muslims or of Arab, Afghani Middle Eastern or South Asian descent. As of October 1, 2002, 60 of these charging parties had received awards of almost $680,000 through the EEOC administrative process alone (a figure that does not include amounts awarded to aggrieved parties who filed suit in court). Finally, some 30% of all private sector national origin charges filed with the EEOC in fiscal year 2002 included allegations of harassment.
In response to the growing number of claims of national origin discrimination, the EEOC has stepped up its efforts to educate employers and employees about this form of discrimination. On December 2, 2002, the EEOC issued updated guidance on national origin discrimination in the workplace. Specifically, the EEOC has updated the portion of its Compliance Manual that addresses national origin discrimination, added further information on national origin discrimination to its website, www.eeoc.gov, and issued a new Q&A fact sheet designed to help small employers understand their obligations under Title VII. The updated Compliance Manual does not substantively alter or expand the prohibition on national origin discrimination, but it does provide helpful examples of what does and does not constitute prohibited conduct.
National origin discrimination can be based upon place of origin (e.g., Serbia, Mexico, Iraq) or ethnic group (e.g., Arabs, Hispanics, Kurds, Gypsies, Native American tribes). It can also be based on physical, linguistic or cultural traits associated with one's national origin (such as speaking with an accent or wearing a traditional African style of dress), or an employer's erroneous belief that an employee is a member of a particular national origin group, regardless of whether the employee is actually a member of that group. Claims of "reverse" national origin discrimination are also possible, for example, when an American employee is treated less favorably than Japanese nationals in a Japanese-owned company.
Employers may not discriminate on the basis of national origin in hiring, recruitment, assignment and other employment decisions. (An exception exists for job requirements imposed in the interest of national security pursuant to any federal statute or Executive Order.) A refusal to hire or adverse action against an employee because of a foreign accent or fluency in English constitutes prohibited national origin discrimination, unless the accent or lack of fluency materially interferes with the employee's ability to perform his or her job duties. The level of effective oral communication in English that would be required in teaching, customer service or telemarketing, for example, is much different from the level required for jobs not involving communication with the public. Similarly, employers may not require that employees speak exclusively in English unless the rule is justified by business necessity and adopted for a legitimate, nondiscriminatory reason. Thus, while English-only rules may sometimes be justifiable for safety or efficiency reasons, such rules may not be adopted merely to suit customer or co-worker preferences.
In the wake of September 11, 2001, and in light of the EEOC's current emphasis on eradicating national origin discrimination, employers must be particularly vigilant about preventing such discrimination in the workplace.