Human Resources News & Insights

EEOC issues new discrimination guidance: 11 changes to pay attention to

The EEOC is supplanting a 14-year-old section in its compliance manual with a brand new set of enforcement guidance. 

The new guidance covers national origin discrimination, and it has replaced the EEOC’s 2002 compliance manual section on that topic.

Of course, employers already know they can’t discriminate against individuals on the basis of their national origin. But what makes reviewing this guidance so important is that it adds in a few wrinkles about what’s considered discriminatory — and how to stay in compliance — that employers may not have ever considered otherwise.

Many of these wrinkles mirror those outlined in the proposed guidance that was issued this past summer, so if you’re familiar with the proposal, this may not come as news to you.

But if you didn’t read the proposal, here is some of the new ground the guidance covers:

  • It’s a national strategic priority. Perhaps one of the more interesting pieces of info wasn’t in the guidance itself, but rather the EEOC’s announcement of its release. In the announcement for the proposed guidance, EEOC Chair Jenny Yang said, “The EEOC has identified immigrant, migrant, and other vulnerable populations as a national strategic priority.” Translation: The feds are going to be vigilantly looking for employers who discriminate against people in those classes.
  • Discrimination based on “perceived” national origin is illegal. The EEOC makes it clear that it’s illegal to refuse to hire someone of a darker completion because you think he or she is from the Middle East, whether the person is or not. It’s also illegal to refuse to hire the person because you perceive that he or she follows certain religious practices, whether the person actually does or not.
  • If you’re involved in any way in human trafficking, you may be guilty of national origin discrimination. The EEOC’s guidance says, “When force, fraud, or coercion is used to compel labor or exploit workers, traffickers and employers may be violating not only criminal laws, but also Title VII. In particular, Title VII may apply in trafficking cases if an employer’s conduct is directed at an individual and/or group of individuals based on a protected category, such as national origin. Even if employees are legally brought into the United States, discrimination on the basis of national origin may occur through the use of force, fraud, or coercion. In trafficking cases, it is not unusual for employers to subject trafficked workers to harassment, job segregation, unequal pay, or unreasonable paycheck deductions, all of which are discriminatory if motivated by Title VII-protected status.”
  • Beware of word-of-mouth recruiting. Advertising or sending job offers only to members of certain ethnically or racially homogeneous areas or audiences could be discriminatory — if the purpose is to exclude a protected group from applying.
  • You could be jointly liable with staffing firms for discrimination. If a staffing agency that you use discriminates against workers, and you suspect it’s happening, you could be held liable right along with the staffing agency for its discriminatory practices.
  • Discrimination by customers could be discrimination by you. An employment decision made based on the discriminatory preferences of customers, clients or employees is discrimination on the employer’s part.
  • Segregation is discrimination. Separating employees by a protected characteristic — e.g. by making employees of one ethic group work in the back room while other employees are free to deal with customers — is discriminatory.
  • Watch Social Security screening. The EEOC said screening out new hires or job candidates because they lack a Social Security number, but are otherwise “work-authorized,” may be illegal if it disproportionately impacts individuals of a certain ethnicity or national origin. According to both the U.S. Citizenship and Immigration Services and the Social Security Administration, newly hired employees should be allowed to work if they have applied for but not yet received a Social Security number.
  • English fluency requirements are OK. But any language requirements must be driven by business necessity.
  • All employees/applicants are covered. Title VII protects individuals regardless of their immigration status.
  • Foreign operations are covered, too. American employers that operate internationally must comply with Title VII — unless doing so would violate the laws of the nation in which they’re operating. Also, Title VII applies to a foreign employer doing business in the United States to the same extent as an American employer, unless the foreign employer is exempted from coverage by a treaty or international agreement.

Info: To accompany the guidance, the EEOC issued a Q&A and a Small Business Fact Sheet to help employers digest it.

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