New Proposed EEOC Guidance on National Origin-Based Discrimination

Edgar M. Rivera, Esq.

On June 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) proposed enforcement guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The guidance sets forth the agency’s interpretation of national origin discrimination under Title VII. This enforcement guidance will supersede the 2002 EEOC Compliance Manual, Vol. II, Section 13: National Origin Discrimination.

Title VII prohibits an employer from treating its employee unfavorably due to his or her national origin, which includes discrimination based on ethnicity, the appearance of an ethnic background, or the association with a particular country or part of the world. National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race. For example, discrimination against people with origins in the Middle East may be motivated by race (Arab), by national origin (Jordan), or religion (Islam). As a result, the same set of facts may state claims alleging multiple bases of discrimination. The proposed guidance also includes three new areas of coverage: job segregation, human trafficking, and intersectional discrimination.

“Job segregation” occurs where an employer segregates workers based on their national origin. The new guidance would prohibit employers from the following actions based on their national origin: assigning or refusing to assign individuals to certain positions, facilities, or geographic areas; denying promotions; physically isolating employees; or otherwise segregating workers. For example, a retailer may not require all Filipino employees to work in lower-paying stocking jobs away from public contact because of an actual or assumed customer preference for non-Filipino sales representatives. However, employers may segregate their employees such that Spanish-speaking individuals interact with Spanish-speaking clients and English-speaking individuals with other English speakers. The former example is impermissible because the only basis for the segregation is national origin, without any legitimate business need.

“Human trafficking”—in addition to violating criminal laws—may violate Title VII. 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. For example, requiring that workers of East Indian descent live in company housing while allowing American workers to live wherever they please violates Title VII.

“Intersectional” discrimination occurs when an employee is discriminated against because he or she belongs to two or more protected categories. Intersectional discrimination targets a specific subgroup of individuals. The proposed guidance makes clear that intersectional discrimination is prohibited under Title VII. For example, an employer who promotes non-Asian women and Asian men but not Asian women violates Title VII.

If you think you have been discriminated against based on national origin, contact The Harman Firm, LLP.