By Pamela Wolf, J.D.
The EEOC has released for public input proposed enforcement guidance addressing national origin discrimination under Title VII. The last time the EEOC comprehensively addressed national origin discrimination was in 2002. Since then, there have been significant legal developments addressing national origin discrimination, the agency explained in a press release
. The revised draft guidance
addresses important issues, including job segregation, human trafficking, and intersectional discrimination (based on the combination of two or more protected bases). The agency is seeking public input on the proposed guidance for a period of 30 days.
Once finalized, the proposed sub-regulatory guidance document would supersede EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination
. It will communicate the Commission's position on important legal issues.
Title VII protections.
Title VII protects job applicants and employees from discrimination based on their race, color, religion, sex, or national origin, as well as retaliation because a person complained about discrimination or participated in an employment discrimination investigation or lawsuit. The EEOC stressed that Title VII prohibits employer actions that treat people unfavorably because of their national origin, including because they are from a particular country or part of the world, because of ethnicity, or because they appear to be of a certain ethnic background.
About 11 percent of 89,385 private sector charges filed with EEOC in fiscal year 2015 alleged national origin discrimination, the agency noted. These charges alleged a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues, and harassment.
The draft guidance provides a comprehensive treatment of issues related to national origin discrimination, including instances where there are overlapping or other types of discrimination alleged at the same time. The draft update includes sections addressing what national origin discrimination encompasses, employment decisions, harassment, language issues, citizenship issues, and related issues such as retaliation and foreign employers operating in the United States and U.S. employers operating abroad. “Title VII prohibits discrimination against U.S. citizens by American employers operating in foreign countries, unless compliance with Title VII would cause an employer to violate the laws of the foreign country in which the workplace is located,” the sub-regulatory document states (footnotes omitted).
The proposed guidance also includes a best-practices section (Promising Practices) that suggests particular practices that employers can implement proactively to head off workplace discrimination. “Carefully designed policies and practices that are implemented well may decrease complaints of unlawful discrimination, cultivate talent, and enhance employee productivity,” according to the draft guidance. “They also may aid recruitment and retention efforts.”
Public input and review.
The EEOC has made the draft guidance available for review
on the regulations.gov website. The 30-day input period ends July 1, 2016. Input should be provided in narrative form rather than redlined versions of the document. The public is invited to submit its input using www.regulations.gov
in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.
The input provided will be posted publicly on www.regulations.gov
and may show email addresses, so personal information that commenters do not want made public (home address, telephone number, etc.) should not be included.
After reviewing the public input received, the EEOC will consider appropriate revisions to the draft guidance before finalizing it.
“No person should face barriers to equal employment opportunity in America simply because of their ethnicity or country of origin,” EEOC Chair Jenny Yang remarked. “The EEOC has identified protecting immigrant, migrant, and other vulnerable populations as a national strategic priority. The Commission looks forward to hearing public input on the proposed enforcement guidance on national origin discrimination.”