In November 2016 the EEOC issued its new Enforcement Guidance on National Origin discrimination. This updated the organization’s last enforcement guidance on this topic issued in 2002. Over the past 15 years national origin discrimination complaints have increased by more than 17%. The purpose of the enforcement guidance is to allow the public to understand the EEOC’s interpretation of the law and to give employers tips to avoid engaging in discrimination.
What is National Origin Discrimination?
The new guidance describes national origin discrimination broadly. It states that:
Generally, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.
-EEOC Enforcement Guidance on National Origin Discrimination 11/18/2016
This means that national origin discrimination could include everything from making fun of someone’s accent to denying someone a job because of the color of his or her skin. National origin discrimination can even happen when the employer is mistaken about the employee’s origin. For example, if the employer discriminates because they believe the employee is from Mexico, but the employee’s ancestors are actually from India, the actions are still an illegal form of national origin discrimination.
The New Enforcement Guidance
The new enforcement guidance shows that the EEOC is taking a more aggressive stance at what it plans to prosecute as workplace national origin discrimination. Two examples of this broader approach can be seen in the description of discrimination based on perceived national origin and discrimination based on association with someone of a certain national origin. Perceived national origin goes back to the idea of actions being considered discriminatory, regardless of the accuracy of the employer’s identification of the employee’s national origin. Association has to do with discrimination because someone is in some type of relationship with someone of a particular national origin. This would cover children, spouses, and significant others.
Much of the language in the new enforcement guidance will not help employers avoid discrimination as it continues to be largely a technical document.
Compliance Issues and Strategies
In terms of strategies that the EEOC suggest employers can take to avoid national origin discrimination, most of them are basic and generic. They include things like stating you are an “Equal Opportunity Employer” and using a variety of different methods to recruit new employees. For the most part, the strategies suggested by the EEOC apply just as well to avoiding any type of employment discrimination, and are not specific to national origin discrimination.
The EEOC is also clear to point out that even if a company does use these tips, it will not be immune from claims of national origin discrimination brought by the EEOC.
What the new enforcement guidance from the EEOC does do is highlight the ever increasing value of businesses to hire outside experts to advise on human resource compliance issues and to develop hiring and recruitment policies that keep the company from engaging in any discriminatory activity.
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