by Jayna Genti
As part of its multiyear Strategic Enforcement Plan, the Equal Employment Opportunity Commission (EEOC) has made protecting immigrant, migrant, and other vulnerable workers a national priority. Because it has found that “many of these workers are unable or afraid to assert their rights under federal law,” the EEOC has instituted outreach and education, particularly among Hispanic workers, with the goal of making them aware of their rights in the U.S. workforce, regardless of their work authorization status. 
The most recent outreach efforts of the EEOC occurred last month when the EEOC’s Richmond Local Office and the Consulate of Mexico in Washington, D.C., pledged to work together to tackle discrimination in the workplace and its unique impact on Mexican nationals. Mexican Consul General Juan Carlos Mendoza Sánchez and Reuben Daniels, Jr., director of the EEOC’s Charlotte District Office, signed a memorandum of understanding (MOU) to establish an ongoing collaborative relationship between the EEOC and the Mexican Consulate.
MOU between EEOC and Mexican Consulate
The goal of the MOU is to provide Mexican nationals with information, guidance, and access to resources on preventing discrimination in the workplace. The Mexican Consulate in Washington, D.C., offers services to preserve the rights of Mexican nationals, and the EEOC’s Richmond office enforces federal employment discrimination laws as part of the agency’s Charlotte District, which spans Virginia, North Carolina, and parts of South Carolina.
Under the terms of the MOU, the Richmond office will work with the Mexican Consulate to collaborate on education
and outreach efforts to ensure that Mexican nationals are aware of applicable workplace laws and regulations and have access to a system for referring complaints to the EEOC. In announcing the signing of the MOU, Richmond Local Office Director Daron L. Calhoun said: “We look forward to working with the Mexican Consulate in this collaborative relationship and partnership to promote justice and equality in the workplace.” He added, “This agreement allows us the unique opportunity to collaborate with the consulate to ensure that we provide outreach and education to individuals who may have difficulty accessing our services.”
Agreement with Mexican Foreign Affairs Ministry
The MOU between the EEOC’s Richmond office and the Mexican Consulate builds on a similar agreement between
the Consulate of Mexico and the EEOC’s Charlotte District Office as well as a 2014 agreement between the EEOC and the Ministry of Foreign Affairs of the United Mexican States. The agreement with the Foreign Affairs Ministry is designed to further strengthen the collaborative efforts between the EEOC on a national level and the government of Mexico.
As then-EEOC Chair Jacqueline A. Berrien said at the time, “We are building on many existing relationships between EEOC offices and Mexican Consulates across the country, and are now able to partner with the Ministry of Foreign Affairs of the United Mexican States to protect vulnerable workers throughout the United States of America.” According to Mexican Ambassador Eduardo Medina, “The joint efforts of the Embassy and the Mexican Consular Network in the United States with the EEOC empower Mexican workers in this country to safeguard their labor rights and stand against employment discrimination.”
EEOC’s outreach efforts to prevent national origin discrimination
In addition to its collaboration with the Mexican government, the EEOC provides outreach to the public through its distribution of educational materials in Spanish. The EEOC also has bilingual staff and interpretive services available to assist Spanish-speaking individuals throughout the charge intake and investigation process.
The EEOC acknowledges that its outreach effort faces challenges because of the language barrier and the common belief among Hispanic workers that resisting discrimination will cause them to be arrested or deported on immigration issues. Despite those challenges, the message that national origin discrimination is illegal is definitely getting out. Over the past 20 years, the percentage of national origin discrimination charges filed with the EEOC has steadily increased, according to the agency’s charge statistics (available at www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm).
During fiscal year (FY) 2015 (the most recent year for which statistics are available), almost 10,000 national origin discrimination charges were filed. That number represents approximately 11% of the almost 90,000 total discrimination
charges filed with the EEOC under all of the federal statutes the agency enforces. Of those charges, approximately half were filed by Hispanic employees. The issues most frequently raised were discharge, harassment, and discriminatory terms and conditions of employment.
In addition, in FY 2014, EEOC staff resolved almost 10,000 charges of national origin discrimination, recovering more than $30 million for individual workers and achieving substantial changes to employers’ policies to remedy violations and prevent future discrimination.
EEOC lawsuits
Over the last 10 years, the EEOC has filed more than 200 lawsuits alleging discrimination against Hispanics in situations involving human trafficking, harassment, and derogatory comments. As a result of its litigation, the EEOC has won increases in wages, benefits, and promotion opportunities for Hispanic workers.
For example, in EEOC v. B&H Foto, the EEOC obtained a court order in 2009 awarding $4.3 million to approximately
150 Hispanic workers who had been denied equal wages because of their national origin. In January of this year, the EEOC settled EEOC v. Evans Fruit Co., a lawsuit in which it alleged that Hispanic female farmworkers were subjected to harassment and retaliation by a fruit grower.
In response to an EEOC lawsuit, a Virginia company doing plaster and drywall work at the Norfolk naval base agreed to pay $30,000 to a Hispanic employee who was subjected to a hostile work environment. In settling EEOC v. Tidewater Plastering and Drywall Company, Inc., the company also agreed to implement a formal antidiscrimination policy and a training program over a three-year period.
English-only rules
The EEOC has also been quite active in challenging English-only rules and practices. The agency takes the position that employers may require employees to speak fluent English only if fluency in English is necessary to perform the job effectively. Thus, an English-only rule is legal only if it is necessary to ensure the safe or efficient operation of your business and is put in place for nondiscriminatory reasons.
Notable workforce trends
It is expected that issues involving discrimination against Hispanic workers will continue to increase as more non-Caucasian workers enter the workforce. In the last 20 years, overall Hispanic workforce participation rates have increased from 2.5% to approximately 14%. Although Hispanic laborers experienced the largest increase in participation, from approximately 6% to approximately 30%, the EEOC reports that participation in all job categories grew.
For further information about the growing diversity in the workforce, you may want to check out the EEOC publication “American Experiences Versus American Expectations: An Updated Look at Private Sector Employment for Women, African Americans, Hispanics, Asian Americans and American Indians/Alaskan Natives in Celebration of EEOC’s 50th Anniversary,” published July 2015. The report is available at https://www1.eeoc.gov//eeoc/statistics/reports/american_experiences/hispanics.cfm.
Bottom line
Given the growing numbers of Hispanic workers in our nation’s workforce and the EEOC’s focus on rooting out national origin discrimination, you should take steps to ensure that you aren’t treating job applicants or employees unfavorably because they are from a particular country or part of the world, appear to be of a certain ethnic background (even if they aren’t), or have a different ethnicity or accent. You may not base an employment decision on an employee’s foreign accent unless the accent seriously interferes with her job performance.
Unlawful national origin discrimination can also involve treating employees unfavorably because they are married to, or otherwise associated with, a person of a certain national origin. And remember that discrimination can occur even when the victim and the perpetrator are of the same national origin.
The best way to ensure that you won’t become the target of an EEOC enforcement action is to regularly review your job application processes and procedures to eliminate any barriers that could unfairly discourage or screen out people with a Hispanic background. Also, periodically conduct training for your managers on the importance of maintaining a work environment free of discriminatory or hostile comments and actions. What may seem like an innocent joke based on an ethnic stereotype may be viewed in an entirely different light by an employee of that ethnicity, and it could form the basis for a national origin charge or lawsuit.
This is yet another situation in which an ounce of prevention in conducting effective management training is worth a pound of cure after a charge or lawsuit has been filed.
Jayna Genti is an attorney with DiMuroGinsberg, PC. She may be contacted at jgenti@dimuro.com.