EEOC Issues Guidance on National Origin Discrimination that Applies to Foreign National Employees
This week the Equal Employment Opportunity Commission (“EEOC”) released guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). The guidance replaces Section 13 of the EEOC’s compliance manual, with a view toward further defining “national origin” and helping employers and employees understand their legal rights and responsibilities. The guidance specifically states that Title VII applies to any worker employed in the United States by a covered employer (employer with more than four employees), regardless of immigration status, as well as any foreign national outside the United States when they apply for U.S.-based employment.
The new guidance defines “national origin” as an individual’s, or his or her ancestors’, place of origin, which can be a country (including the United States), a former country, or a geographic region. In addition, “national origin” refers to an individual’s national origin group or ethnic group, which it defines as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.” Discrimination based on national origin group includes discrimination because of a person’s ethnicity (e.g., Hispanic) or physical, linguistic, or cultural traits (e.g., accent or style of dress). Discrimination based on place of origin or national origin group includes discrimination involving a mere perception of where a person is from (e.g., Middle Eastern or Arab), association with someone of a particular national origin, or citizenship status. Title VII discrimination can take the form of unfavorable employment decisions based on national origin or harassment so pervasive or severe that it creates a hostile work environment.
In addition to clarifying the meaning of “national origin,” the guidance provides examples based on how actual courts have applied Title VII to specific facts. For example, the guidance gives as an example of “intersectional” discrimination a Mexican-American woman who, without explanation, was denied a promotion at a company where she successfully worked for 10 years, despite two non-Mexican women and a Mexican man being selected for the same position. The guidance also provides examples where national origin discrimination overlaps with other protected bases, such as discriminating against people with origins in the Middle East due to a perception that they follow certain religious practices. Further, the guidance gives examples of real cases where employment decisions and harassment constituted Title VII national origin violations, as well as cases where Title VII violations were not found. Finally, the guidance applies Title VII national origin principles to trafficking cases, where employers use force, fraud, or coercion to compel labor or exploit workers, and such conduct is directed at an individual or a group of individuals based on national origin.
Employers of foreign national workers should note that individuals with Title VII claims may also have claims under other Federal statutes, including the anti-discrimination provision of the Immigration and Nationality Act (INA). Form I-9 and the E-Verify program are two areas where discrimination claims could arise under both the INA and Title VII.