Because of increasing diversity in the workforce—and a spike in discrimination complaints since the events of Sept. 11, 2001—taking steps to avoid national-origin bias is more critical than ever. Now, the U.S. Equal Employment Opportunity Commission has released updated guidelines to help employers understand the prohibitions against national-origin discrimination and to suggest best practices for fostering a bias-free workplace. In Part 1 of this two-part story on the new guidance, we focus on the EEOC’s rules regarding national-origin bias in employment decisions and workplace security. Next month, we’ll look at the guidelines concerning language requirements, dress, and citizenship.
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What Is National-Origin Discrimination?
According to the EEOC, national-origin discrimination occurs when you treat someone less favorably because they come from a certain place (usually a country), because of their ethnicity or accent, or because they appear to have a particular ethnic background. This means you cannot discriminate against someone who belongs to an ethnic group (such as a Hispanic or an Arab) or has physical, linguistic, or cultural characteristics closely associated with a national-origin group. For example, it is illegal to discriminate against an employee based on her traditional African style of dress.
National-origin discrimination also includes discriminating against someone because of marriage or other association with someone of a particular nationality. Note that there’s often an overlap between national-origin bias and bias on the basis of race or religion.
Discriminatory Employment Practices
The guidelines state that it’s illegal for national origin to be the basis of your employment decisions, including recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training, discipline, layoff, and termination. The EEOC also stresses that you can’t base employment decisions on customers’ or co-workers’ discriminatory preferences. This means you can’t reassign a cashier who has an accent because your customers prefer an “all-American image.” Similarly, discharging a Lebanese cab driver because passengers complain about riding with a Middle Eastern driver would be illegal.Note, too, that employment decisions that are motivated by both national-origin discrimination and legitimate reasons are illegal. For example, you can still be liable if you fired the cashier because of his accent and his poor cash register skills.Keep in mind that it’s illegal to retaliate against an employee who has opposed unlawful national-origin discrimination or who has filed a charge, testified, assisted, or otherwise helped with an investigation.
Bias-Free Recruitment and Hiring
With respect to avoiding bias in recruiting and hiring, the guidance suggests that employers should use a wide variety of recruiting techniques, such as job fairs, professional associations, search firms, and internship programs. Casting a wide net for future employees is more likely to result in a diverse applicant pool. Advertisements should state that you are an “equal opportunity employer.” And you should establish written, objective job criteria that are tied to legitimate business needs and apply them consistently for all candidates.
On the flip side, it’s critical to avoid recruitment practices, such as a word-of-mouth approach, that may have the purpose or effect of discriminating against particular national-origin groups.
Discipline, Demotion, and Discharge
The new guidelines emphasize that you must enforce neutral workplace rules and policies for discipline, demotion, and discharge without regard to an employee’s national origin. The EEOC recommends that employers keep careful records of the legitimate business reasons for discipline. Plus, the agency advises employers to monitor new managers and encourage them to consult with more experienced managers in difficult disciplinary situations.
Security Requirements
According to the EEOC, you can impose security requirements if you do it without regard to national origin. For example, you can’t require Middle Eastern applicants to undergo more extensive background checks than other applicants. Note, however, that federal law may require security clearances for sensitive positions, and the EEOC generally doesn’t have jurisdiction to review these decisions. Plus, it’s not illegal to cooperate with law enforcement officers’ requests for access to personnel files under the new USA Patriot Act.
Harassment Prevention
The guidelines stress that employers should take steps to prevent workplace harassment based on national origin and respond promptly to correct a harassment situation. Employers should clearly communicate to employees that harassment based on national origin will not be tolerated and that anyone who harasses will be disciplined. Also, be sure to have clear, effective policies and procedures for addressing complaints of national-origin harassment and to train managers on how to identify and respond to this type of harassment.