New England Biz Law Update
With one in 10 Americans born in another country, and 12 percent of the U. S. workforce composed of immigrants, the Equal Employment Opportunity Commission last December issued a “guidance” on national origin discrimination, which provides instructions for investigating and analyzing charges of discrimination based on national origin.
In announcing the new guidance, commission Chair Cari M. Dominguez spoke of the increasingly diverse society and the need for fair competition for jobs among all workers. “Immigrants have long been an asset to the American workforce,” she said. “This is more true than ever in today’s increasingly global economy. Recent world events, including the events of Sept. 11, 2001, only add to the need for employers to be vigilant in ensuring a workplace free from discrimination.”
Corporate counsel should review the guidance carefully because it is critical to understanding the EEOC’s handling of national origin discrimination claims. (The guidance can be found in the “important documents” section of New England In-House’s website: www.newenglandbizlawupdate.com.)
The in-house legal focus must be on what the agency mandates are, how they affect the individual employer, and when compliance efforts must include not only reactions to governmental pronouncements, but strategies for tapping the wealth of opportunities presented by a diverse and tolerant workforce.
The trends as reflected by the 2000 census indicate the movement towards even greater diversity among races, cultures, religions and nationalities. As the common denominator, the workplace can produce not only the problems, but also the solutions for managing the increasingly mobile and mixed asset we call human resources
The Stats
Recently released statistics for fiscal year 2002 bear out the EEOC’s attention to national origin and other claims of workplace discrimination. National original discrimination allegations increased 13 percent at the EEOC in fiscal year 2002, with over 9,000 charges received by the commission.
Indeed, the commission saw a rise in all charges in 2002, with nearly 85,000 total filings. Among them, allegations of racial discrimination continue to head the list with nearly 30,000 charges, or 3.5 percent of all charges. The biggest increases in charges, however, included religious discrimination (up 21 percent) and national origin discrimination (up 13 percent).
The increasing diversity of our workforce combined with recent global events have made preventing and remedying workplace discrimination due to national origin a priority not only for the EEOC but also for most employers.
Statistics from the 2000 census indicate that the largest numbers of recent immigrants to the United States have come from Asia and Latin America. Immigrant workers counted more than 15 million in 1999 and filled more than one-third of all new jobs created between 1990 and 1998.
Even with the best of intentions and the budget to support them, employers may not be able to anticipate and manage all the employee-relation challenges this degree of workforce diversity presents.
The Guidance
The guidance — in the form of a newly added section to the EEOC’s Compliance Manual — makes clear that national origin discrimination can occur in two ways. It can take the form of bias because a person (or his or her ancestors) comes from a particular place. Or it can be bias because that person is part of a “national origin group,” or an “ethnic group” of people sharing a common language, culture, ancestry or other similar characteristics.
The guidance gives as examples of national origin groups Hispanics, Arabs and American Indians. It also makes clear that national origin discrimination includes discrimination against someone who does not belong to a particular ethnic group, the so-called “reverse discrimination.”
Finally, the guidance provides that employment discrimination may occur if an employer believes an employee to be a member of a particular national origin group, even if he is not.
National origin discrimination is not easily separated from other forms of prohibited conduct.
As the guidance instructs:
“Title VII’s prohibition against national origin discrimination often overlaps with the statute’s prohibitions against discrimination based on race or religion. The same set of facts may state a claim of national origin discrimination and religious discrimination when a particular religion is strongly associated, or perceived to be associated, with a specific national origin. Similarly, discrimination based on physical traits or ancestry may be both national origin and racial discrimination. If a claim presents overlapping bases of discrimination prohibited by Title VII, each of the pertinent bases should be asserted in the charge.”
Language And ‘English-Only’ Policies
The increase in the diversity of the workforce also has resulted in an increase in the number of workers for whom English is not the native language. According to the guidance, in the year 2000, 45 million Americans spoke a language other than English in the home. It is not surprising then that many employers have had to face issues regarding the language to be spoken in the workplace.
Using examples of conduct that are both permissible and prohibited, the section of the guidance on language covers accent discrimination, fluency requirements, and English-only rules. In keeping with prior interpretation and court rulings, the guidance reiterates that employers may consider English proficiency and accents, but only if it is necessary for the employee to perform his or her job duties.
As the guidance states, for example, “Employers should distinguish between a merely discernible foreign accent and one that interferes with communication skills necessary to perform job duties.”
As to “English-only rules,” the commission received 228 charges challenging English-only rules in fiscal year 2002.
The commission cited the following examples as situations in which business necessity would justify an English-only rule: for communications with customers, co-workers, or supervisors who only speak English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which the rule is needed to promote efficiency; and to enable an English-speaking supervisor to monitor the performance of an employee whose job duties require communication with co-workers or customers.
Security Requirements
The guidance makes clear that employers in some cases may justify hiring and other employment decisions by relying on security requirements. In other words, Title VII permits employers to refuse to hire or to terminate employees based on a security clearance determination. As the EEOC does not review the substance of those determinations or security requirements, the EEOC’s review of decisions involving security clearances is very limited.
Harassment Based On National Origin
According to the EEOC, claims of harassment based on national origin doubled over the past 10 years, with nearly 2,700 charges of national origin harassment filed in fiscal year 2002. To be actionable under Title VII, harassment must be severe and pervasive, rather than “merely offensive,” the commission explained using examples of illegal conduct to illustrate the difference.
According to the guidance, “The most important step for an employer in preventing harassment is clearly communicating to employees that harassment based on national origin will not be tolerated and that employees who violate the prohibition against harassment will be disciplined.”
Relevant factors in evaluating whether national origin harassment rises to the level of creating a hostile work environment include whether the conduct was physically threatening or intimidating, how frequently it was repeated, the context in which it occurred and whether management responded appropriately.
In a recently settled case, the EEOC reported a $1.1 million payout to a group of employees of a steel producer. The employees claimed they were repeatedly harassed due to their national origin and Muslim religion, including being ridiculed during their daily prayer obligations and derogatory name-calling.
The company will pay monetary damages totaling $1.1 million to four former employees and has agreed to make policy changes, conduct training to prevent future discrimination, and to implement a policy guaranteeing an employee’s right to request an accommodation for religious needs.
Through an interpreter, one of the charging parties said: “I felt that we were humiliated and given the worst assignments simply because of where we were born and our religious beliefs. But we are Americans and, with the assistance of the EEOC, I have found that the American laws [against discrimination] protect us too.”
Expressing its satisfaction with the settlement, the EEOC publicly praised the employer’s “willingness to review their existing policies and to make improvements as needed.” (EEOC v. The Herrick Corporation, d/b/a Stockton Steel, CIV S 00-0102 MCE DAD).
Jackson Lewis LLP is a national law firm representing management exclusively in all aspects of workplace law and related litigation. Joan Ackerstein is a partner in the firm’s Boston office where she manages the employment law practice and defends employers in litigation. Ms. Ackerstein may be contacted at 617-367-0025 or at [email protected].
