The EEOC’s latest proposed guidance covers a topic a lot of employers probably think they already know well: national origin discrimination. But the new guidance throws in a few wrinkles about what’s considered discriminatory — and how to stay in compliance — that employers need to know.
The proposed guidance released by the EEOC expresses official agency policy and explains how the law and regulations apply to specific workplace situations.
A lot of what’s covered are things you likely already know. But some interesting new ground was covered as well.
Here are the highlights:
- 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, 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. Example: Not only is refusing to hire someone of a darker completion because you think he or she is from the Middle East illegal, but so is also refusing to hire the person because you perceive that he or she follows certain religious practices.
- 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.
- 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.
Info: The guidance is open for public comment until July 1, 2016. You can submit comments here. There is no timeline for when a final rule may be implemented.