Diversity & Inclusion

EEOC revises national origin discrimination guidance for changing workforce

by Arielle B. Sepulveda

The Equal Employment Opportunity Commission (EEOC) has released proposed enforcement guidance on national origin discrimination for public comment. Once finalized, the guidance will serve as a reference for agency staff when they investigate and litigate national origin discrimination claims as well as a resource for employers and employees on the law and the EEOC’s interpretation of it.  EEOC-jpg

Basics of national origin discrimination

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Its protection against national origin discrimination extends to all employees and job applicants in the United States and covers not only real or perceived discrimination based on a person’s (or his ancestors’) race, ethnicity, or place of origin but also discrimination based on him having the physical, cultural, or linguistic traits of a national origin group. It can also include discrimination based on citizenship status or association with someone of a particular national origin.

The EEOC is the federal agency that enforces Title VII. Since the EEOC last published guidance on national origin discrimination in 2002, approximately 11% of all charges filed annually with the agency have included allegations of national origin discrimination. Meanwhile, the American workforce continues to become more diverse, reflecting not only ongoing immigration but also increasing numbers of firstand second-generation Americans entering the workforce.

New topics in the proposed guidance

As the nationwide workplace demographic has changed, the employment issues involving national origin discrimination have also evolved. The proposed guidance not only updates the EEOC’s 2002 analyses on discriminatory hiring, promotion, benefits, discipline, termination, and harassment but also addresses newer issues like intersectional discrimination, human trafficking, and alternative employment arrangements.

The EEOC acknowledges in the guidance that some characteristics, like race and color, often fuse inextricably with national origin. Discrimination against someone because of the combination of two or more protected characteristics is referred to as “intersectional discrimination.” Because Title VII prohibits employment discrimination based on any protected characteristic individually or in combination, the EEOC interprets the law to prohibit discrimination against a particular subgroup regardless of whether the discrimination is also based on the protected characteristics individually. As a result, the EEOC could determine that an employer discriminated against Asian women even if there’s no evidence of discrimination against Asian men or non-Asian women.

The proposed guidance also addresses human trafficking/compelled labor, an issue that was not covered in the 2002 guidance. The EEOC explains that by using force, fraud, or coercion to compel labor or exploit workers, traffickers and employers may violate both criminal laws and Title VII, especially if the conduct is directed at a person or group based on a protected category like national origin.

Finally, the proposed guidance contains a more detailed discussion of joint-employer liability, providing multiple examples involving temporary employment relationships. The guidance makes clear that the EEOC may consider both a host employer and a staffing agency liable under Title VII if they have (1) the right to control the means and manner of employees’ work performance, regardless of whether they actually exercise that right, and (2) at least 15 employees.

The guidance cites the recent case of Browning-Ferris Indus. of Cal., Inc., in which the National Labor Relations Board (NLRB) held that two or more companies are joint employers of a group of workers under the National Labor Relations Act (NLRA) if they “share or codetermine those matters governing the essential terms and conditions of employment,” even if the control is indirect or isn’t exercised.

Because the Occupational Safety and Health Administration (OSHA) invoked the same broad standard in a draft internal memorandum leaked late last year, the EEOC’s adoption of the Browning-Ferris test may signal that federal labor and employment agencies are moving toward a consistent enforcement position on joint-employer liability. That will have an impact not only on companies that use or supply contract labor but also on franchisers and franchisees and others whose business models reserve for them the discretion to determine matters related to hiring, firing, discipline, supervision, and direction of workers.

Bottom line

Based on the EEOC’s 2014 enforcement statistics (the last year for which there are both national and state-specific data), approximately one out of every 10 charges filed nationwide (10.6%) alleged national origin discrimination. Therefore, it’s imperative employers should be particularly aware of the proposed guidance’s valuable insights into the EEOC’s interpretation of the law and its enforcement position.

Arielle B. Sepulveda is an attorney with Day Pitney LLP, practicing in the firm’s Parsippany, New Jersey, office. She may be contacted at asepulveda@daypitney.com.