National Origin Discrimination: The Next Enforcement Frontier?

By Karen R. Glickstein

While it remains to be seen what effect a Trump presidency will have on federal employment laws, the EEOC has made clear that it will continue to emphasize protections afforded to individual employees based on their national origin. The Agency’s updated Strategic Enforcement Plan, issued in October 2016, noted that immigrant rights will be a priority for the agency over the course of the next five years, with a focus on recruitment and hiring practices that affect members of ethnic groups (among others). The Enforcement Guidance on National Origin Discrimination, issued on November 21, 2016, is the Agency’s first interpretation of the law surrounding national origin discrimination.

The Guidance on National Origin Discrimination contains a broad definition of “national origin discrimination,” which includes discrimination or harassment because an individual (or his or her ancestor) is from a certain place or shares the physical, cultural or language characteristics of a national origin or ethnic group. Under this definition, national origin can include a particular country or a group of individuals who share a common language, culture or social characteristics. While the definition does not include citizenship or immigration status, the Guidance contains a reminder that the protections of Title VII apply to all individuals, regardless of their citizenship, immigration, or foreign national status. In addition, the Guidance notes that individuals may receive the protections of the law if they are discriminated against or harassed because they associate with someone of a particular national origin.

Employers should consider the following aspects of their policies and practices which may be under increased scrutiny as a result of the Guidance:

  • whether English-only or fluency policies exist for legitimate business reasons;

  • are applicants for positions sought through diverse sources or only through word of mouth, increasing the possibility of a non-diverse applicant pool;

  • how dress code policies are enforced and whether they disproportionately affect individuals from particular ethnic or national backgrounds; and

  • are job duties distributed without regard to customer preferences and/or perceived to segregate employees by national origin

In addition, employers should review the Agency’s Q&A on the guidance, as well as the Fact Sheet for Small Employers, both of which contain high level summaries of the key points of this document.