Perhaps in response to some of the questions posed by the media following the election of Donald Trump, the Equal Employment Opportunity Commission (“EEOC”) recently released guidance on national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). As many employers are aware, Title VII applies to any individual 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 update is significant, as it replaces a current section (Section 13) of the EEOC’s compliance manual by expanding the definition of “national origin” to include 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. As most employers are aware, discrimination in the workplace is illegal. National origin discrimination involves “treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” According to the EEOC, a “national origin group” is a group of people sharing a common language, culture, ancestry, and/or other similar social characteristics. Discrimination under Title VII discrimination covers employment decisions based on national origin or harassment so pervasive or severe that it creates a hostile work environment.
Not surprisingly, national origin discrimination often overlaps with race discrimination and / or religious discrimination. For example, a Hispanic who’s subjected to harassment about his ethnicity and to derogatory comments about Catholicism would have a claim based on both national origin and religious discrimination.
If your business employs foreign national workers, note that workers 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.
For more information on how to sensitively address workplace concerns relating to national origin, contact experienced business lawyer Drew E. Pomerance today.
