EEOC’s recent focus may signal forthcoming guidance

The Equal Employment Opportunity Commission’s recent focus on compliance and enforcement issues surrounding laws barring national origin-based job bias has some attorneys wondering if new guidance may be forthcoming.

The EEOC held a meeting on Nov. 13 to address the fast-changing ethnic and language demographics of the American workforce and the challenges they  place on employers seeking to comply with — and on federal agencies seeking to enforce — anti-bias laws. The meeting could indicate the agency’s desire to revisit and amend its current guidance, which was last updated in 2002 to address the rise in discrimination and harassment claims following the Sept. 11 terrorist attacks.

“Usually when the commission holds a meeting, it is step one or two in the process of building a record in order to update its guidance,” said Paul H. Kehoe, senior counsel in the Washington office of Seyfarth Shaw.

But while many employment attorneys on both sides say they would welcome clearer direction from the agency, particularly when it comes to workplace language policies, such guidance may not be imminent.

“Generally speaking, there usually has to be change in the law that really drives this impetus for new guidance,” Kehoe said, pointing to recent guidance related to the amended Americans with Disability Act and the recently passed Genetic Information Nondiscrimination Act.

“Whether the commission takes this issue up in the near term is questionable,” given that the national origin component of Title VII hasn’t changed, he said.

The commission has not said that new guidance is being considered. According to EEOC Chair Jacqueline Berrien, the meeting was called to give commissioners “the opportunity to consider how we can best advance our mission to stop and remedy unlawful discrimination based on national origin.”

Focus on language policies

At the meeting, worker advocates told commissioners that while larger metropolitan areas have long had significant immigration worker populations, in recent years there has been a dramatic increase in the number of foreign-born and multilingual workers in smaller communities where employers have less experience in formulating policies that guard against job bias.

Policies that prohibit non-English speakers in certain job positions or require language proficiency testing not only marginalize segments of the workforce, but also reinforce stereotypes, said Thomas A. Saenz, president and general counsel of the Los Angeles-based Mexican American Legal Defense and Educational Fund.

“There are certainly actual harms to many employees from this kind of job segregation, including compensation differentials, lost promotional opportunities, and lost opportunities of other kinds,” Saenz testified. “From a policy perspective, one of the most significant harms is that it inures the public to such segregation and discrimination and reinforces stereotypes about the abilities, skills and ‘proper place’ of Latinos in United States society.”

Saenz said the EEOC should update its guidance to give employers direction on what is permissible.

“Guidance should directly caution that customer preference and co-worker preference are not legitimate grounds for national-origin discrimination,” Saenz said at the meeting. “Accent discrimination, particularly in the current national atmosphere around immigration policy, remains a matter of concern, ripe for clear guidance.”

EEOC officials noted that that the agency already has a host of tools it uses to help guard against national origin discrimination and enforce federal laws.

Lucila Rosas, lead coordinator of the EEOC’s Immigrant Worker Team, which is charged with implementing the agency’s comprehensive plan to address issues affecting workers of foreign origin, said that staff members utilize litigation, enforcement actions and outreach efforts, but acknowledged that in recent decades “the workforce the agency is charged to protect has undergone profound changes.”

“Not only has the labor force grown from 73 million in 1964, the year the EEOC was created, to over 155 million workers in 2013, it has also become much more diverse,” Rosas testified, noting that in the last decade, the percentage of minority workers who speak a language other than English has risen from 33 to 50 percent.

Help on the way?

Attorneys representing employers say that updated guidance can be beneficial, so long as employers’ legitimate business interests are taken into account.

Thoughtfully drafted guidelines not only give clear direction to the courts once lawsuits are filed, “they also help practitioners like me help clients understand and comply with the laws so that litigation can be avoided,” said Elizabeth Torphy-Donzella, a partner in the Baltimore office of Shawe & Rosenthal.

Such guidance can be especially helpful to smaller employers who may inadvertently run afoul of Title VII rules because they are not aware of how they apply to their workplaces until they are hit with a lawsuit.

“If the EEOC can find ways to partner with small employers to assist them in complying with the laws, rather than having the rules learned through litigation, this would be a ‘win/win,” Torphy-Donzella said.

But Kehoe, a former EEOC attorney advisor, said that new guidance could be a double-edged sword for attorneys and their clients.

“Everybody likes to ask for clarity unless the clarity they receive is not the clarity that they wanted,” he said.

In Kehoe’s view, a best practices document would be most helpful, given that national-origin claims tend to be very fact specific. He also suggested that any new action on national origin bias will take a back seat to other emerging issues at the EEOC.

“Pregnancy discrimination is more in the forefront right now,” Kehoe said, noting that the U.S. Supreme Court recently asked for the U.S. solicitor general’s view — and by extension, the EEOC’s view — in the pending pregnancy discrimination case Young v. United Parcel Service Inc.