The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

I. OVERVIEW

Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from employment discrimination based on their race, color, religion, sex, national origin, opposition to practices made unlawful by Title VII, or participation in Title VII proceedings.[1] Title VII's protection against national origin discrimination extends to all employees and applicants for employment[2] in the United States,[3] and, in some circumstances, to U.S. citizens working in other countries.[4] In enacting this protection, Congress recognized that whether an individual (or her ancestors) is from China, Russia, or Nigeria, or belongs to an ethnic group, such as Hispanic or Arab,[5] she is entitled to be free from employment discrimination on that basis.

The American workforce is increasingly ethnically diverse.[6] The largest percentages of immigrants to the United States are now from Asia and Latin America,[7] which extends a recent trend.[8] Immigration from Africa and the Caribbean countries also continues to enhance diversity among Black Americans.[9]

Immigrant workers are present in every occupation in the United States, and they are highly-represented in many of the largest-growth occupations.[10] Twenty-five percent of foreign-born workers aged 16 and older work in service occupations.[11] In the near future, second- and third-generation descendants of at least one foreign-born parent are expected to enter the workforce in increasing numbers.[12]

This document sets forth the Commission's interpretation of the law of national origin discrimination. In crafting this guidance, the Commission analyzed how courts have interpreted and applied the law to specific facts. Regarding many national origin discrimination issues, the lower courts are uniform in their interpretations of the relevant statutes. This guidance explains the law on such issues with concrete examples, where the Commission agrees with those interpretations. Where the lower courts have not consistently applied the law or the EEOC's interpretation of the law differs in some respect, this guidance sets forth the EEOC's considered position and explains its analysis. The positions explained below represent the Commission's well-considered guidance on its interpretation of the laws it enforces. This document serves as a reference for staff of the Commission and other federal agencies who investigate, adjudicate, litigate, or conduct outreach on national origin discrimination under Title VII.[13] It will also be useful for employers, employees, and practitioners seeking detailed information about the EEOC's position on national origin discrimination, and for employers seeking "promising practices."[14] This Enforcement Guidance supersedes EEOC Compliance Manual, Vol. II, Section 13: National Origin Discrimination.

II. WHAT IS "NATIONAL ORIGIN" DISCRIMINATION?

Generally, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.[15] Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.[16] National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.[17]

A. Employment Discrimination Based on Place of Origin

National origin discrimination includes discrimination "because of an individual's, or his or her ancestor's, place of origin[]."[18] The place of origin may be a country (e.g., Mexico, China, Syria) or a former country (e.g., Yugoslavia).[19] The place of origin may be the United States.[20] Finally, it may be a geographic region, including a region that never was a country but nevertheless is closely associated with a particular national origin group, for example, Kurdistan or Acadia.[21]

B. Employment Discrimination Based on National Origin Group or Ethnicity

Title VII also prohibits employment discrimination against individuals because of their national origin group. A "national origin group," or an "ethnic group," is a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.[22] Hispanics, Arabs, and Roma are ethnic or national origin groups.[23]

Employment discrimination against members of a national origin group includes discrimination based on:

Ethnicity : Employment discrimination because of a person's ethnicity as defined above, for example, discrimination against someone because he is Hispanic. [24] National origin discrimination also includes discrimination against a person because she does not belong to a particular ethnic group, such as less favorable treatment of employees who are not Hispanic.

: Employment discrimination because of a person's ethnicity as defined above, for example, discrimination against someone because he is Hispanic. National origin discrimination also includes discrimination against a person because she does not belong to a particular ethnic group, such as less favorable treatment of employees who are not Hispanic. Physical, linguistic, or cultural traits: Employment discrimination against an individual because she has physical, linguistic, and/or cultural characteristics closely associated with a national origin group.[25] For example, subjecting an individual to an adverse employment action because of her African-sounding accent or traditional African style of dress could constitute discrimination based on African origin.[26]

Employment discrimination based on place of origin or national origin (ethnic) group includes discrimination involving:

Perception : Employment discrimination based on the belief that an individual (or her ancestors) is from one or more particular countries, or belongs to one or more particular national origin groups. For example, Title VII prohibits employment discrimination based on the perception that someone is from the Middle East or is of Arab ethnicity, regardless of how she identifies herself or whether she is, in fact, from one or more Middle Eastern countries or ethnically Arab. [27]

: Employment discrimination based on the belief that an individual (or her ancestors) is from one or more particular countries, or belongs to one or more particular national origin groups. For example, Title VII prohibits employment discrimination based on the perception that someone is from the Middle East or is of Arab ethnicity, regardless of how she identifies herself or whether she is, in fact, from one or more Middle Eastern countries or ethnically Arab. Association : Employment discrimination against an individual because of his association with someone of a particular national origin. For example, it is unlawful to discriminate against a person because he is married to or has a child with someone of a different national origin or ethnicity. [28]

: Employment discrimination against an individual because of his association with someone of a particular national origin. For example, it is unlawful to discriminate against a person because he is married to or has a child with someone of a different national origin or ethnicity. Citizenship status: Employment discrimination based on citizenship status if it has the purpose or effect of discriminating based on national origin.[29]

Finally, the Commission's position is that employment discrimination because an individual is Native American or a member of a particular tribe also is based on national origin.[30]

C. National Origin Discrimination That Overlaps or Intersects with Other Title VII Protected Bases

1. Multiple Protected Bases

National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race.[31] For example, charges filed by Asian Americans may involve allegations of discrimination motivated by both race and ancestry (national origin).[32] Similarly, discrimination against people with origins in the Middle East may be motivated by race, national origin, or even the perception that they follow particular religious practices.[33] As a result, the same set of facts may state claims alleging multiple bases of discrimination.

Example 1

National Origin, Race, and Religious Discrimination Thomas, who is Egyptian, alleges that he was harassed by his coworkers about his Arab ethnicity.[34] He also has been subjected to derogatory comments about Islam. Thomas' charge should assert national origin, race, and religious discrimination.

2. Intersectional Discrimination

Title VII also prohibits "intersectional" discrimination, which occurs when someone is discriminated against because of the combination of two or more protected bases (e.g. national origin and race). "Some characteristics, such as race, color, and national origin, often fuse inextricably. . . . Title VII prohibits employment discrimination based on any of the named characteristics, whether individually or in combination."[35] Because intersectional discrimination targets a specific subgroup of individuals, Title VII prohibits, for example, discrimination against Asian women even if the employer has not also discriminated against Asian men or non-Asian women.[36]

Example 2

Race, National Origin, and Sex Discrimination Ava, who is a Mexican American woman, was denied a promotion to a team leader position at the company where she successfully worked for 10 years. Ava is qualified for the team leader position but she was rejected three times for the promotion, without explanation. Ava alleges that she was denied the promotions because she is a Mexican American woman. She claims that two non-Mexican women and a Mexican man were selected for the three positions and that the company has never promoted a Mexican American woman to team leader in its 20 year history, even though Mexican American women have constituted about 20% of the line staff from whom team leaders are typically drawn. Ava's charge of discrimination should assert race, national origin, and sex discrimination.

Employment discrimination motivated by a stereotype about two or more protected traits would constitute intersectional discrimination. Thus, a stereotype about Hispanic women would apply only to Hispanic women;[37] it would not apply to either Hispanic men or non-Hispanic women.

D. Employment Discrimination and Human Trafficking

When force, fraud, or coercion is used to compel labor or exploit workers, traffickers and employers may be violating not only criminal laws,[38] but also Title VII. In particular, Title VII may apply in trafficking cases if an employer's conduct is directed at an individual and/or group of individuals based on a protected category, such as national origin.

Even if employees are legally brought into the United States, discrimination on the basis of national origin may occur through the use of force, fraud, or coercion. In trafficking cases, it is not unusual for employers to subject trafficked workers to harassment, job segregation, unequal pay, or unreasonable paycheck deductions, all of which are discriminatory if motivated by Title VII-protected status.[39] Trafficking cases may involve multiple or intersecting bases of discrimination, such as national origin and sex. They often also involve retaliation for protected activity.[40]

Example 3

Human Trafficking and

National Origin Discrimination An oil industry parts manufacturer ("Manufacturer") recruits East Indian workers to work in its U.S. factory as high-tech welders, fitters, electricians, and engineers. Manufacturer promises the East Indian workers that they will be well-compensated and that they will work under conditions similar to those of American workers. However, once the East Indian workers arrive in the U.S., Manufacturer confiscates their passports, visas, and I-9 Forms and restricts their movement, communications, privacy, worship, and access to health care, while placing no similar restrictions on Manufacturer's non-Indian workers. The East Indian workers are subjected to racial and ethnic harassment, paid less than minimum wage, placed in substandard housing, and forced to do "undesirable" work unrelated to the skills for which they were hired, including janitorial work. Manufacturer does not subject Caucasian, U.S.-born workers to similar mistreatment or working conditions. Based on these facts, the EEOC finds reasonable cause to believe that the East Indian workers were subjected to race and national origin discrimination.[41]

III. EMPLOYMENT DECISIONS

Employment decisions that are challenged as discriminatory based on national origin are subject to both disparate treatment and disparate impact analysis. Disparate treatment discrimination occurs when national origin (or another protected trait) is a motivating factor in an employment action.[42] Disparate impact discrimination occurs when a policy or practice has a significant negative impact on members of a Title VII-protected group but is not job related and consistent with business necessity.[43]

Title VII applies to all employment decisions, including those involving:

Recruitment

Hiring

Promotion

Work assignments

Segregation and classification

Transfer

Wages and benefits

Leave

Training and apprenticeship programs

Discipline

Layoff and termination

Other terms and conditions of employment

The following subsections discuss the application of Title VII's bar on national origin discrimination to various types of employment decisions.

A. Recruitment

Title VII prohibits employers from engaging in recruitment practices that have the purpose of discriminating based on national origin, as well as practices that disproportionately limit employment opportunities based on national origin and are not job related and consistent with business necessity. Thus, Title VII prohibits an employer from using certain recruitment practices, such as relying on word-of mouth advertising or sending job postings only to ethnically or racially homogenous areas or audiences, if the practices have the purpose or unjustified effect of excluding people based on national origin.[44] Practices aimed at increasing the overall diversity of the applicant pool, such as recruiting at minority-serving institutions, that do not exclude any particular national origin groups would not implicate Title VII's bar on national origin discrimination.

Example 4

Job Requirement that May Improperly

Screen Out Individuals Based on National Origin Machines, Inc. has an apprenticeship program that trains participants in the skills needed to become a journeyman machine mechanic. The company, which started as a family-owned business, limits the program to individuals who are sponsored by its current machine mechanics. When negotiating a new collective bargaining agreement with the local union, Machines, Inc. and the union note that the number of applicants to the program has declined steadily for the last 10 years and that, while there has been a significant increase in Korean and Hispanic workers in the local labor force, no one in the apprenticeship program is from these national origin groups. Machines, Inc. realizes that the personal sponsorship requirement may create a disparate impact by screening out people on the basis of national origin. Since the requirement is not job related or necessary for the mechanic position, Machines, Inc. and the union agree to implement outreach practices intended to attract a more diverse group of applicants.

Employers may not request that an employment agency refer only applicants and/or employees who are of a particular national origin group. Similarly, because Title VII directly prohibits discrimination by employment agencies, they may not comply with discriminatory recruitment or referral requests from employers.[45] For example, a placement agency may not honor a client request to recruit only Latino workers.

Staffing firms, including temporary agencies and long-term contract firms, also are covered as employers by Title VII when each has the statutory minimum number of employees and has the right to exercise control over the means and manner of a worker's employment (regardless of whether they actually exercise that right).[46] If both a staffing firm and its client employer have the right to control the worker's employment and have the statutory minimum number of employees, then they would be covered as "joint employers." Thus, if a temporary agency learns that one of its employees was involuntarily transferred by a client employer from a position that involves public contact to a lower-paying position without public contact because of stereotypes about her national origin, the agency will be liable if it fails to take prompt corrective action within its control. Corrective action would include, for example, insisting that the client return the employee to the former position. If the client refuses, the agency could take corrective action by offering to assign the worker to another client at the same rate of pay, and declining to assign other employees to the same worksite unless the client changes its discriminatory practices.[47]

Example 5

Staffing Firm and Client Jointly Liable for

National Origin Discrimination A farm labor contract firm (Contract Firm) recruits Thai nationals to work on farms in the U.S., promising steady, high-paying agricultural jobs and temporary worker visas that would allow the individuals to work in the U.S. legally. However, Contract Firm charges the Thai workers extremely high recruitment fees and confiscates their passports when they enter the U.S., threatening deportation if they complain. Once in the U.S., the Thai workers are trained by Contract Firm and assigned to work for a client, "Farm A," to harvest a variety of fruits and vegetables. The Thai workers at Farm A are paid unequal wages when compared to non-Thai workers; forced to live in substandard housing without adequate food or kitchen facilities; forbidden from leaving the premises; isolated from non-Thai workers, who appear to be working under more tolerable working conditions; and threatened and physically abused by Contract Firm supervisors. Farm A is aware of the Thai workers' mistreatment, but does nothing to prevent or intervene. Based on these facts, the EEOC finds reasonable cause to determine that the Thai workers were subjected to unlawful national origin discrimination, harassment, and retaliation, and that Contract Firm and Farm A are liable as joint employers.[48]

Example 6

Unlawful Hiring and Job Segregation

Based on National Origin ABC Corp. owns and operates a resort in Hawaii. It relies exclusively on Recruiter Inc. to provide entry-level and supervisory landscapers at its resort. ABC's managers observe that Recruiter Inc. regularly fills entry-level landscaper positions with Micronesian, Samoan, and Native Hawaiian applicants and fills the landscape supervisory positions with White, Japanese, and Chinese applicants. Kaimana, who is Native Hawaiian, contacts ABC directly to apply for an advertised landscape supervisor position. ABC refers Kaimana to Recruiter, explaining that its landscaping work is performed by Recruiter's contract employees. Although Kaimana possesses all the qualifications for the landscape supervisor job, Recruiter offers him a position as an entry-level landscaper. Recruiter instead hires Louis, a White applicant, for the vacant supervisory position even though Louis is less qualified and possesses fewer years of relevant supervisory experience than Kaimana. Kaimana files a charge of discrimination with the EEOC alleging that ABC and Recruiter discriminated against him based on his Native Hawaiian national origin. ABC responds to the charge by stating that the landscapers and landscape supervisors are Recruiter's, not ABC's, employees, and therefore ABC is not responsible for Recruiter's actions. The investigation reveals that the landscapers and supervisors are on Recruiter's payroll, that Recruiter pays them based on hours worked as reported by ABC, and that Recruiter evaluates them based on ABC's feedback. ABC schedules their work hours and provides all their landscaping tools and equipment. Based on these facts, the investigator concludes that Recruiter and ABC are joint employers because they both have the right to exercise control over the landscaper's and landscape supervisor's employment.[49] Even though Recruiter made all of the hiring decisions, the investigator also concludes based on these facts that there is reasonable cause to believe that both entities discriminated against Kaimana based on national origin.

B. Hiring, Promotion, and Assignment

Title VII prohibits hiring discrimination based on national origin.[50] Employers must not treat candidates differently during the hiring process based on their national origin. Employers also must not use selection criteria that have a significant discriminatory effect without being able to prove that the criteria are job related and consistent with business necessity.

Example 7

Unlawful Hiring Decision Anu is a woman of Bangladeshi ancestry who wears a sari. She is offered a cashier position at Bakery after a phone interview. When she reports for the first day of work, she is quickly told by the manager who interviewed her by phone that Bakery changed its mind and that it has found someone "better suited" for the position. Anu suspects that Bakery's manager changed his mind after seeing that she wears a sari and is South Asian. Anu files a Title VII charge alleging discrimination based on race and national origin. The EEOC investigation reveals that Bakery hired a Hispanic woman for the position one week after turning Anu away and that Anu and the selectee possessed comparable qualifications. Under the circumstances, the evidence establishes reasonable cause to believe that the employer provided a false reason for its action as a pretext for unlawful race and national origin discrimination.

Additionally, employers may not limit assignments and promotional opportunities based on national origin.[51]

Example 8

Unlawful Failure to Promote Joseph, who is Latino, has worked successfully for a transportation company for over five years. In annual evaluations, his supervisors noted his superior technical and organizational skills. Joseph applies for a promotion to a position in which he would supervise about 25 people performing work similar to his own. Joseph is qualified for the job, but the selecting official rejects him because he believes that some employees will not want to "take orders from a Latino." Based on these facts, the EEOC finds reasonable cause to determine that this decision was unlawful based on Joseph's national origin.

1. Discriminatory Customer Preference

Employers may not rely on the discriminatory preferences of coworkers, customers, or clients as the basis for adverse employment actions in violation of Title VII.[52] An employment decision based on the discriminatory preferences of others is itself discriminatory. For example, a specific "corporate look" or "image" policy may serve as a proxy for discriminatory customer preference or prejudice, and, accordingly, would not justify hiring, assignment, or promotion decisions that treat individuals in a disparate manner based on their national origin.[53]

Example 9

Unlawful Hiring Decision Based on Customer Preference Alex, a Chinese-American college student, applies to work as a salesperson at Suburban Clothing Store. Alex is qualified for the job because he has worked successfully in retail sales before. The manager who conducts the job interview asks Alex where he was born, states that he looks "foreign," and notes that he is concerned that Alex's physical appearance would not fit the company's "all-American image." Alex is not hired. If there is evidence that Suburban based this decision on its belief that customers would have negative perceptions about Alex's national origin or race, or because Suburban prefers to hire people who do not look "foreign," the EEOC would have reasonable cause to find that Suburban subjected Alex to unlawful national origin or race discrimination.

2. Job Segregation

Title VII prohibits employers from assigning or refusing to assign individuals to certain positions, facilities, or geographic areas; denying promotions; physically isolating employees; or otherwise segregating workers into jobs based on their national origin.[54] For example, a retailer may not require all Filipino employees to work in lower-paying stocking jobs away from public contact because of an actual or assumed customer preference for non-Filipino sales representatives.[55]

Example 10

Unlawful Assignment

Based on National Origin Fine Dining Establishment opens a restaurant in an upscale urban neighborhood. It runs an advertisement in local newspapers recruiting people to work in food preparation, serving, and cleaning. Don, a Hispanic man with three years of experience as a server at a high-end restaurant, applies for a position as a server with Fine Dining Establishment. Believing that he would be better suited for a position with limited public contact at this location due to his Spanish accent, the hiring manager offers Don a position in cleaning or food preparation. Don is as qualified for a server position as non-Hispanic applicants who are hired as servers, and his accent would not materially interfere with his ability to do the job. Based on these facts, the EEOC finds reasonable cause to determine that Fine Dining Establishment has unlawfully assigned Don to a position based on his national origin.

Example 11

Unlawful Denial of Promotion

Based on National Origin Farm B hires both indigenous Mexican immigrant workers who speak Triqui and non-indigenous Mexican immigrant workers, who typically speak Spanish, to pick fruit on its farms in California. Several qualified indigenous workers apply for a promotion to sorter positions, which entail greater responsibility and are higher paid. Even though proficiency in Spanish is not necessary for successful performance of the sorter position, Farm B's Spanish-speaking Mexican supervisors decide that they prefer to have only Spanish-speaking sorters and therefore promote only non-indigenous, Spanish-speaking workers. Based on these facts, the EEOC finds reasonable cause to believe that Farm B has discriminated against the indigenous Mexican workers based on national origin.

3. Security Requirements and Screening

In limited circumstances, employers may justify their employment selection decisions with reference to national security requirements. Title VII provides employers with a defense against a complaint or charge of discrimination for refusal to hire, refusal to refer, or termination where an individual does not meet job requirements that are "imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under" any federal statute or Executive Order.[56] Additionally, the Commission may not review the substance of an Executive Branch security clearance determination or the federally imposed security clearance requirement itself, even if it is allegedly based on national origin or another characteristic protected under equal employment opportunity (EEO) law.[57]

Commission review of claims involving national security clearances may nonetheless be appropriate where the Commission can resolve the matter without considering the merits of a security clearance decision. For instance, the Commission may review whether the grant, denial, or revocation of a security clearance was conducted in a discriminatory manner,[58] and whether procedural requirements for making security clearance determinations were followed without regard to an individual's protected status.[59]

4. Social Security Numbers

Through the Form I-9 process, employers must verify the identity and employment eligibility of newly hired employees.[60] After completing the Form I-9 process, some employers also use the electronic federal E-Verify system, which compares information on the employee's Form I-9 to information in government databases, to verify identity and employment eligibility.[61] Employees are permitted to choose which documents to select for employment eligibility verification purposes.[62] Some employees may choose to present an unrestricted Social Security card to prove employment eligibility.[63] Other work-authorized employees may, however, decide not to present a Social Security card for a variety of reasons, including because they have misplaced it or have not yet received a Social Security number. According to both the U.S. Citizenship and Immigration Services and the SSA, newly hired employees should be allowed to work if they have applied for but not yet received a Social Security number.[64]

A policy or practice of screening out new hires or candidates who lack a Social Security number implicates Title VII if it disproportionately screens out work-authorized individuals of a certain national origin, such as newly arrived immigrants or new lawful permanent residents, and thus has a disparate impact based on national origin. If a new hire or applicant shows that such a policy or practice has a disparate impact based on her national origin, its use is unlawful under Title VII unless the employer establishes that the policy or practice is job related and consistent with business necessity.[65]

C. Discipline, Demotion, and Discharge

As with other employment decisions, a decision to discipline, demote, or discharge an employee may not be based on his or her national origin.[66] Rules and policies regarding discipline, demotion, and discharge also must be nondiscriminatory and enforced without regard to national origin.

Example 12

Unlawful Enforcement of Tardiness

Policy Based on National Origin Grocery Store has a written tardiness policy that allows a 10 minute grace period after the scheduled start time for late arrival, after which the employee is marked tardy. An employee who repeatedly violates the tardiness policy is issued a written reprimand. Da'uud, a Somali employee, is given a written reprimand for tardiness after arriving to work at least 15 minutes late on three occasions. Although other Somali workers also have been reprimanded for tardiness, Hmong workers at Grocery Store either are permitted to make up the time or are just reminded to be on time in the same circumstances. Because Grocery Store treats Somali employees who violate its tardiness policy more severely than Hmong employees who violate it, the EEOC finds reasonable cause to believe that the company has discriminated against Da'uud, and the other Somali employees, based on their national origin.

Employer decisions to discipline or discharge employees must be based on nondiscriminatory reasons, such as their quality or quantity of work, rather than national origin, race, or other prohibited factors.[67]

Example 13

Unlawful Termination Based on

National Origin and Race Veggie Farms hires 75 African American and 145 Mexican seasonal farmworkers for the growing season. Veggie's management officials consistently make negative comments directed towards the African American farmworkers, calling them "lazy" and "slow," and telling them that "American workers are worthless compared to the Mexicans." Supervisors refuse to adequately train the African Americans and assign them to pick vegetables in fields that already have been picked by Mexican workers, resulting in lower pay. After a few weeks, Veggie's management summarily fires most of the African American workers, but does not fire any of the workers from Mexico, saying "[a]ll you lazy Americans can leave, just go to the office and pick up your checks." Because the workers' treatment and discharge are based on their national origin (American) and their race (Black), the workers can pursue claims against Veggie for national origin and race discrimination.[68]

Customer or client ethnic prejudices or preferences do not justify discriminatory discipline, demotion, or discharge decisions.

Example 14

Unlawful Discharge Based on National Origin Yusuf, who is of Iraqi national origin, was discharged from his position as a bus driver. According to the bus company, some customers complained that they were wary of riding with a driver who appeared to be Arab in light of allegations of terrorist activities against Americans in the Middle East. Yusuf's performance was satisfactory, and he did not have any driving or safety violations during his employment with the bus company or, before that, with a shuttle bus company. By acting on the basis of customer prejudices rather than Yusuf's performance and driving record, the bus company unlawfully discriminated against him based on national origin.

D. Mixed Motives in Employment Decisions

Employment decisions that are motivated by both national origin discrimination and nondiscriminatory reasons violate Title VII.[69] However, remedies in such "mixed motives" cases are limited if the employer shows that it would have taken the same action even if it had not relied on national origin.[70] Once the plaintiff demonstrates that national origin played a role in the challenged action, the employer then demonstrates that it would have taken the same employment action based on another, nondiscriminatory factor; a mere assertion to this effect is not enough. If the employer makes this showing, the charging party may receive declaratory and injunctive relief, attorney's fees, and costs, but is not entitled to reinstatement, back pay, or compensatory or punitive damages.[71]

Example 15

Mixed Motives: Limitations on Remedies Amil, who is Indian American, is employed as a security guard for an accounting company. Amil's co-workers repeatedly complain to the company's president that Amil is abusing his position as a security guard by issuing unauthorized warning tickets for parked cars, conducting unauthorized office searches, and intimidating and threatening employees. The company president reprimands and later suspends Amil for his actions, but he continues this behavior. Amil is subsequently terminated. During this time period, Amil and several of his colleagues hear the company president state that he feels the company has hired "too many" South Asian employees and that he fears they may be affiliated with extremist terrorist organizations. Amil files an EEOC charge alleging national origin discrimination. The EEOC investigation confirms that the president did, in fact, make the reported statements about South Asians. The investigation also reveals that the president terminated Amil after confirming Amil's misconduct, warning him, and seeing Amil continue the same conduct. This comported with the company's progressive discipline policy and its treatment of other employees who engaged in similar misconduct. The EEOC finds reasonable cause to believe that the company would have made the same termination decision even absent discrimination. If Amil were to prevail in court by establishing that national origin discrimination was a motivating factor in his termination, he would be entitled to injunctive relief and attorney's fees and costs, but not to reinstatement, back pay, or compensatory or punitive damages.

IV. HARASSMENT

In fiscal year 2015, approximately 37 percent of all charges of discrimination filed alleging national origin discrimination in the private and state/local government sectors included a harassment claim.[72] The subsections below summarize Title VII's prohibition against national origin harassment.

A. Title VII's Prohibition Against a Hostile Work Environment Based on National Origin

Title VII prohibits national origin harassment when it is so severe or pervasive that it "alter[s] the conditions of the individual's employment" by creating a hostile or abusive work environment.[73] The harassment is unlawful if the individual subjectively perceives the work environment as hostile, and a reasonable person would find it to be hostile or abusive.[74]

A hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent.[75] A hostile work environment may be created by the actions of supervisors, employees, or non-employees, such as customers or commercial contacts.[76]

Whether an individual was subjected to a hostile work environment depends on the totality of the circumstances. Relevant questions in evaluating whether national origin harassment rises to the level of creating a hostile work environment may include any of the following:

Whether the conduct was hostile and/or offensive;

Whether the conduct was physically threatening or intimidating;

How frequently the conduct was repeated; or

The context in which the harassment occurred.

The following examples illustrate the distinction between an unlawful hostile work environment and offensive conduct that is not sufficiently severe or pervasive to violate Title VII:

Example 16

Hostile Work Environment

Based on National Origin Muhammad, who is of Pakistani descent, works for Motors, a large automobile dealership. His coworkers regularly call him "camel jockey," "the local terrorist," and "the ayatollah," and intentionally embarrass him in front of customers by claiming that he is incompetent. The EEOC finds reasonable cause to believe that the constant ridicule has made it difficult for Muhammad to do his job and has created a hostile work environment in violation of Title VII.[77]

Example 17

Conduct That Does Not Create a

Hostile Work Environment Based on National Origin George, an immigrant of Haitian descent, was hired by Shipping Company as a dockworker. On his first day, George dropped a carton, prompting Bill, a coworker, to yell at him. The same day, George overheard Bill telling a coworker that foreigners are stealing jobs from Americans. Two months later, Bill confronted George after he argued with another coworker about assignments. Bill called George "lazy" and mocked his accent. Although Bill's conduct was based on national origin, standing alone, these incidents were not sufficiently severe or pervasive to create a hostile work environment in violation of Title VII.[78]

Language restrictive policies (including English-only rules, see infra section V.C.) may contribute to a hostile work environment.[79]

Example 18

Hostile Work Environment and

Unlawful Language Restrictive Policy Filipino hospital workers were called to a meeting with the CEO of Hospital, who said that a prominent member of the local community complained that two Filipino employees on the Medical/Surgical floor spoke loudly in a Filipino language outside of his wife's hospital room and that this was disrespectful. The CEO told the Filipino workers that this would not be tolerated in the Hospital and that staff were now required to speak English at work. The CEO warned that supervisors and Hospital Security officers had been instructed to report on anyone who spoke a language other than English. Subsequently, a variety of Hospital employees shadowed the Filipino workers, mocked their accents, and loudly reminded them to "only speak English." Three Filipino workers contacted Hospital's EEO office to complain about the harassment and the Hospital's language restrictive policy, but management did not address the conduct or change the policy. These three employees then filed EEOC charges of discrimination challenging the policy and alleging a hostile work environment based on national origin. The EEOC found reasonable cause to believe that Hospital's implementation of the language restrictive policy was unlawful[80] and also that the three employees were subjected to an unlawful hostile work environment based on the policy and the harassment that was associated with it.[81]

B. Employer Liability for Unlawful Harassment

Employers and employees each play an essential role in preventing national origin harassment. When employers and employees both take appropriate steps to prevent and correct offensive conduct, it is much less likely to escalate to the point of violating Title VII. The standard for employer liability for harassment depends on the role of the harasser in the employer's organization.[82]

1. Employer Liability for Unlawful Harassment by Supervisors

When a supervisor[83] engages in harassment that includes a tangible employment action imposing "a significant change in employment status," such as discharge, demotion, or refusal to promote, the employer is liable and does not have a defense.[84] The Supreme Court explained that "[w]hen a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation" with the employer.[85] For example, if a supervisor created a hostile work environment for an Arab employee by repeatedly accusing her of being a "terrorist," and then terminated her employment because of her race and ethnicity, the employer would be liable for unlawful harassment as well as discriminatory discharge.[86]

When national origin harassment by a supervisor creates a hostile work environment but does not result in a tangible employment action, the employer will be liable for the supervisor's conduct unless it can show the following:

The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and

The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.[87]

Example 19

Employer Not Liable for Hostile Work

Environment Created by Supervisor Natalie, a retail worker who emigrated from Russia to the United States as a child, claims that her supervisor at Luxury Store regularly made offensive comments to her about her Russian national origin. Natalie attends Luxury Store's annual training on harassment, which directs employees to report harassment to Human Resources, assures them that complaints are confidential, and reiterates Luxury Store's "zero tolerance" for retaliation of any kind. There is no evidence that Luxury Store either has failed in the past to respond appropriately to workers' harassment complaints, or has retaliated against employees who made such complaints. Natalie decides, however, that she cannot go to Human Resources about her supervisor's offensive comments. Several months later, Natalie confides to a colleague about the supervisor's behavior. The colleague reports it to the employer, which immediately conducts an investigation and determines that the supervisor is harassing Natalie based on national origin. The employer disciplines the supervisor and transfers him to another store. If Natalie files a complaint alleging a hostile work environment based on national origin, the company would not be liable because Natalie unreasonably failed to complain and the company took reasonable and corrective measures when it learned about the offensive conduct.

2. Employer Liability for Unlawful Harassment by Employees or Non-Employees

An employer is liable when non-supervisory employees or non-employees create a hostile work environment if the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action.[88]

Example 20

Employer Liable When Non-Employee

Creates a Hostile Work Environment Charles is a frequent visitor on Senior Community's "neighborhood days," when Senior Community allows neighbors to visit its residents. During his visits, Charles often yells derogatory comments about South Asians at Asha, a nurse of Sri Lankan origin, and has pushed and tripped her on a few occasions. Asha complains about the conduct to a manager but is told that Senior Community cannot take any action against Charles because he is not a resident or employee. Charles continues to yell ethnic slurs at Asha on subsequent visits. Asha files an EEOC charge of discrimination. The EEOC finds reasonable cause to believe that Asha was subjected to a hostile work environment based on national origin, and that Senior Community is responsible for the actions of Charles, a non-employee, because it had the power to control Charles's access to the premises, was aware of Charles's offensive conduct, and did not take corrective action.

C. Human Trafficking

Cases involving human trafficking often include employer conduct that constitutes unlawful harassment, such as sexual, national origin, or racial harassment.[89] Given the nature of compelled labor, the work environment may reasonably and necessarily be perceived as hostile. The egregious employer conduct in human trafficking cases usually will also easily satisfy the requirements for employer liability for unlawful harassment. However, the specific conduct at issue in a particular human trafficking case will be relevant to determining appropriate relief.

Example 21

Hostile Work Environment

and Human Trafficking Anna is smuggled from Mexico to the United States under false pretenses about the work she will do. Upon arrival in the United States, she is taken to work at Poultry Plant. She receives $5 a day for her work, is forced to live in a cramped and unsanitary dormitory on Poultry Plant's property, is prohibited from leaving without supervision, and is under threat of deportation. Anna is taunted by coworkers with ethnic slurs such as "wetback" and "Mexican dog." One evening when Anna's shift ends, a supervisor pulls her into a cleaning closet and rapes her. Although the employer has a complaint procedure, Anna reasonably fears that she will be subjected to deportation, so she instead contacts a church group and eventually files an EEOC charge. The EEOC finds reasonable cause to believe that Anna was subjected to unlawful harassment based on national origin and sex.

V. LANGUAGE ISSUES

As the U.S. labor force has grown more ethnically diverse, the number of workers who are not native English speakers has increased. Between 2010 and 2014, an average of 20.9 percent of the population spoke a language other than English at home.[90] This represents an increase from 17.9 percent in 2000 and 13.8 percent in 1990.[91]

Employers may have legitimate business reasons for basing employment decisions on linguistic characteristics. However, because linguistic characteristics are closely associated with national origin, it is important to carefully scrutinize employment decisions that are based on language to ensure that they do not violate Title VII.[92] The subsections below provide guidance on how Title VII applies to employment decisions that are based on accent, English fluency, and restrictive workplace language policies.

A. Accent Discrimination

An accent can reflect whether a person lived in a different country or grew up speaking a language other than English.[93] National origin and accent are therefore intertwined,[94] and employment decisions or harassment based on accent may violate Title VII.[95] Due to the link between accent and national origin, courts take a "very searching look" at an employer's reasons for using accent as a basis for an adverse employment decision.[96] Courts require employers to provide evidence - as opposed to unsupported assertions - to explain such actions.

Under Title VII, an employment decision may legitimately be based on an individual's accent if the accent "interferes materially with job performance."[97] To meet this standard, an employer must provide evidence showing that: (1) effective spoken communication in English is required to perform job duties; and (2) the individual's accent materially interferes with his or her ability to communicate in spoken English.[98]

Where the evidence shows that an individual has a good command of spoken English or satisfactorily performs his job when speaking accented English, courts have ruled against employers under Title VII.[99]

Example 22

National Origin Discrimination Involving Accent Chinasa, an experienced retail professional who works for National Retailer, speaks English with a Nigerian accent. National Retailer selects Chinasa for a Regional Loss Prevention Manager position. An executive who will oversee Chinasa's work approaches her immediately after the promotion and comments, "I bet this is a great achievement considering where you came from. As an African, you must be the first to achieve this much success in your family given your accent." The executive tells Chinasa to "try to speak more like an American" and also to be careful about her demeanor because, in his opinion, "Africans are known to be brash and aggressive." The executive repeats these comments on several occasions during Chinasa's first several months on the job. There is no evidence, however, that staff members misinterpret or do not understand Chinasa's spoken English. In fact, the evidence shows that staff members respond promptly to Chinasa's directions without seeking clarification and provide information that is responsive to her requests. Nonetheless, after nine months, the executive terminates Chinasa's employment, telling her that she is a "poor fit" for the Regional Loss Prevention Manager position. When Chinasa requests further explanation, he cites discomfort with her "thick African accent,"asserts that some staff members do not understand her, and laments that she did not speak "more like an American." Based on these facts, the EEOC finds reasonable cause to believe that National Retailer discriminated against Chinasa because of her national origin.[100]

In assessing whether an individual's accent materially interferes with the ability to perform job duties, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job.[101] Evidence of an accent materially interfering with job duties may include documented workplace mistakes attributable to difficulty understanding the individual; assessments from several credible sources who are familiar with the individual and the job; or specific substandard job performance that is linked to failures in spoken communication.[102]

Example 23

No National Origin Discrimination Involving Accent:

Accent Materially Interferes with Job Performance

Discount Airline needs to hire a customer service agent at a major metropolitan airport to provide in-person assistance for passengers who have missed their connections or whose flights have been cancelled or delayed. This position requires short but effective spoken communication in a noisy environment with a disgruntled public. Romel, who speaks English with a pronounced Filipino accent, applies for the position and is invited for an interview. The interviewing process includes a job simulation during which the applicant responds to customers in an atmosphere that mimics that of a busy airport. Two experienced interviewers who understand the demands of this job are impressed by Romel's calm demeanor and commitment to problem-solving, but they have difficulty understanding Romel's spoken English during the interview process. The interviewers conclude that Romel's pronounced Filipino accent will materially interfere with effective spoken communication in this environment. As a result, Romel is not hired. Romel challenges his rejection as national origin discrimination involving his accent. The EEOC does not find reasonable cause to believe that Romel was subjected to national origin discrimination because effective oral communication is required for this position, and Romel's accent materially interferes with his ability to communicate effectively in the circumstances of this job.

Example 24

National Origin Discrimination Involving Accent:

Accent Does Not Materially Interfere with Job Performance Mariam, who speaks with a discernible Lebanese accent, is an experienced English-language teacher who earned an American graduate degree in education after moving to the United States with her American husband. Mariam's graduate school professors commended her demonstrated ability to engage high school students. High School hired Mariam as a permanent substitute teacher for humanities courses. Teachers at High School specifically requested her as a substitute teacher because it is clear to them that the students learn the assigned material when she teaches. Mariam subsequently applies and is rejected for three permanent teaching jobs at High School. The School District's hiring official explains that effective communication in English is required for classroom teachers, and Mariam is not qualified because she speaks with a Lebanese accent. Although effective communication in English is required to teach at High School, Mariam's accent does not materially interfere with her ability to do so, as demonstrated by the statements of other High School teachers and her graduate school professors. Mariam states a claim for national origin discrimination involving her accent.[103]

If an employer takes an employment action in response to the discriminatory preferences of others, the employer itself is discriminating. Employers may not rely on coworker, customer, or client discomfort or preference to justify a discriminatory employment action based on accent.[104]

B. Fluency Requirements

1. English Fluency

Generally, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed.[105] An individual's lack of fluency in English may interfere with job performance in some circumstances, but not in others. For example, an individual may be sufficiently proficient in English to qualify as a research assistant but, at that point in time, may lack the fluency to qualify as a senior scientific writer who must communicate complex scientific information in English.[106]

Because the degree of fluency that may be lawfully required varies from one position to the next, employers are advised to assess the level of fluency required for a job on a case-by-case basis. Applying uniform fluency requirements to a broad range of dissimilar positions or requiring a greater degree of fluency than is necessary for a position may result in a violation of Title VII.

Example 25

No National Origin Discrimination Involving English Fluency Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in an overwhelmingly English-speaking, non-bilingual community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers who only speak English is limited. Under these circumstances, XYZ's decision to exclude Jorge from the sales position does not violate Title VII.

Example 26

National Origin Discrimination Involving English Fluency Ender, whose first language is Turkish, works at Hotel's Registration and Concierge Desk. Hotel serves a largely English-speaking clientele. At the Concierge Desk, Ender provides local directions to restaurants, museums, theaters, and other destinations and otherwise helps guests plan their visits. A guest complains that Ender gave him directions to a business appointment "in broken English." The guest, who was late for the appointment, demands that Hotel management remove Ender from the Concierge Desk. Two supervisors observe Ender at work. They conclude that he speaks English quickly, clearly, and precisely, albeit with a Turkish accent. They also find Ender's local directions to be accurate. The supervisors recommend against taking action against Ender. However, upper management decides to terminate Ender's employment and replace him with a native English speaker, because the guest who complained works for a company that is an established client of Hotel. Under these circumstances, there is reasonable cause to believe that Hotel's decision to terminate Ender was motivated by his national origin and violates Title VII. The Hotel's supervisors specifically found that Ender's accent did not affect his ability to communicate information accurately, and he was terminated to appease the preferences of an unhappy client. Where client preference is based on a protected basis such as national origin, the employment decision violates Title VII.

2. Fluency in Languages Other Than English

With American society growing more diverse, employers have increasingly required some employees to be fluent in languages other than English. As with English fluency requirements, requiring fluency in a language other than English is only permissible if it is required for the effective performance of the position for which it is imposed.[107] For example, a business that provides services to numerous Spanish-speaking customers may have a sound business reason for requiring that some of its employees speak Spanish.

A business with a diverse clientele may assign work based on an employee's ability to speak a language other than English. For example, an employer may assign bilingual Spanish-speaking employees to provide services to customers who speak Spanish, while assigning employees who only speak English to provide services to English-speaking customers. Additionally, employers are not required by Title VII to provide additional compensation for work that is performed in a language other than English, provided the employers do not require employees to work extra hours without compensation.[108]

Example 27

Bilingual Job Requirement Not Discriminatory Andy, who is only fluent in English, applies for a custodial supervisor position with a school district in Texas. The job description states that a preferred qualification is that candidates speak fluently in Spanish and English in order to communicate effectively with the custodial staff, many of whom speak only English or only Spanish. During Andy's job interview with a school district representative, Andy acknowledges that he does not speak Spanish. The school district does not hire Andy because he is not fluent in Spanish and English. Instead, the school district promotes Anne, a Hispanic woman who was employed as a custodial foreman for the school district, to the custodial supervisor position. Anne is fluent in both English and Spanish. The school district representative suggests to Andy that he should apply for a different custodial position that does not require fluency in Spanish. Under these circumstances, the school district's preference for a bilingual supervisory employee would not support a Title VII discrimination claim based on race or national origin by the non-bilingual applicant.[109]

C. English-Only Rules and Other Restrictive Language Policies

Restrictive language policies or practices requiring the use of the English language at work are commonly known as English-only rules. These policies or practices may also involve languages other than English, for example, Spanish-only policies. Restrictive language policies implicate national origin because an individual's primary language is closely tied to his or her cultural and ethnic identity.[110]

1. Policies Adopted for Discriminatory Reasons

As with other workplace policies, a restrictive language policy violates Title VII if it is adopted for discriminatory reasons, such as bias against employees of a particular national origin.[111] Thus, it would be unlawful disparate treatment to implement an English-only rule in order to avoid hearing foreign languages in the workplace, to generate a reason to discipline or terminate people who are not native English speakers, or to create a hostile work environment for certain non-English speaking workers.

Evidence of disparate treatment includes failure to consider whether there are substantial business reasons for the policy. The weaker the business reasons, the more difficult it may be to justify the policy under Title VII.

Example 28

Evidence Establishes That Policy Was

Adopted for Discriminatory Reasons John, a Latino man who is bilingual in Spanish and English, works in a warehouse for Factory, Inc. John works on an assembly line and has job duties that do not require him to speak English. Factory decides to adopt a rule that requires all workplace communications to be conducted in English after a complaint is received objecting to John speaking Spanish during a break. In practice, the English-only rule is applied at all times on company property, even though its text says that it should not be applied during breaks and personal time. John files a Title VII charge challenging the rule. Based on the evidence, the EEOC finds reasonable cause to believe that John was subjected to unlawful disparate treatment. In particular, the evidence reveals that Factory, Inc., had no work-related reasons for the rule, and a manager expressed concern prior to the rule's adoption that other warehouse employees were likely to taunt Latinos if they knew about the rule. Finally, Factory, Inc.'s chief executive referred to the Spanish language as "garbage" in a public interview. The evidence establishes reasonable cause to believe that the English-only rule was adopted because of anti-Latino bias.[112]

2. Policies Applied in a Discriminatory Manner

Regardless of whether a restrictive language policy was adopted for nondiscriminatory reasons, the policy may not be applied differently to employees because of their national origin. For example, if six languages other than English are spoken in a workplace, it would be facially discriminatory to prohibit employees from speaking one of those languages but not the others, e.g., a "no Russian rule," no matter the reason.[113] Title VII also prohibits an employer from enforcing a policy in a discriminatory manner, for example, imposing more severe discipline on Vietnamese employees who violate the policy than on Latino employees with comparable violations. Finally, penalizing employees for minor, inadvertent infractions that do not undermine workplace safety or efficiency may be evidence of intentional discrimination.[114]

3. EEOC Guidelines on English-only Policies

The EEOC's long-standing English-only guidelines, issued in 1980, provide that rules requiring employees to speak English in the workplace at all times will be presumed to violate Title VII.[115]

a. Adverse Effect on National Origin Groups

When an employer imposes an English-only rule, either in limited circumstances or at all times, employees with limited or no English skills and bilingual employees whose primary language is not English may be adversely affected because they are prohibited from communicating at work-including for work-related purposes -in their most effective language.[116] An English-only rule may also adversely impact these employees by subjecting them to discipline and termination for speaking their most effective language while imposing no comparable risk for native English-speaking employees.[117] Finally, an English-only rule "is likely in itself to 'create an atmosphere of inferiority, isolation, and intimidation' that constitutes a 'discriminatory working environment.'"[118]

b. Policies That Apply at All Times

A restrictive language policy is applied "at all times" when employees are prohibited from speaking their primary language any time they are on duty or in the workplace, including during lunch, breaks, and other personal time while on the employer's premises.

Because language-restrictive policies may be applied only to those specific employment situations for which they are needed to promote safe and efficient job performance or business operations, blanket rules requiring employees to speak English (or another language) at all times are presumptively unlawful.[119]

c. Policies That Apply in Limited Circumstances

The lawfulness of a limited language-restrictive policy- one that does not apply at all times or to all jobs, workplace situations, or locations- depends on whether the evidence shows that the policy is job related and consistent with business necessity.[120] An employer may satisfy this standard by providing detailed, fact-specific, and credible evidence demonstrating that the business purpose of requiring employees to speak a common language is sufficiently necessary to safe and efficient job performance or safe and efficient business operations to override its adverse impact, and that it is narrowly tailored to minimize any discriminatory impact based on national origin.[121]

d. Job Related and Consistent with Business Necessity

Because of the adverse effects of a restrictive language policy on employees with limited or no English skills, and on bilingual employees whose primary language is not English, such a policy is unlawful unless the employer establishes that the policy is job related and consistent with business necessity. It is not sufficient that the policy merely promote business convenience.[122]

To meet the burden of establishing business necessity, the employer must present detailed, fact-specific, and credible evidence[123] showing that the language-restrictive policy is "necessary to safe and efficient job performance"[124] or safe and efficient business operations.[125] This burden cannot be met with conclusory statements or bare assertions about the business need for a language-restrictive policy.[126] It is necessary to analyze the specific circumstances that are presented in each situation. The following general principles provide guidance when evaluating whether a language-restrictive policy is job related for the position in question and consistent with business necessity.

(1) Restrictive Language Policy Effectively Serves Business Needs

Part of establishing business necessity is demonstrating that the language-restrictive policy actually serves the identified business need.[127] The effectiveness of a language-restrictive policy also may hinge on which language is identified as the common language of those performing the work. Sales representatives with monolingual clientele may generate the most sales by speaking the language in which the customer is proficient. Similarly, cooperative work assignments may be completed efficiently when employees use the language in which they are most proficient. If safety considerations constitute the demonstrated business need, employers may assess whether their employees with limited English skills are more likely to understand and relay safety instructions or warnings efficiently and effectively in English or in their shared language.[128]

(2) Restrictive Language Policy is Narrowly Tailored

A language-restrictive policy is narrowly tailored when it applies only to those workers, work areas, circumstances, times, and job duties in which it is necessary to effectively promote safe and efficient business operations. This minimizes the adverse impact.

Example 29

Policy Narrowly Tailored to Promote Safe

and Efficient Job Performance Claudia, a Honduran-born U.S. immigrant who is fluent in Spanish and English, is employed by County hospital as a housekeeper, and she is assigned to clean operating rooms. She files a charge of discrimination alleging that she was subjected to unlawful national origin discrimination when the hospital adopted an English-only rule. The respondent produces evidence showing that the rule applies to all workers, including cleaning staff, but only for job-related discussions when they are working in the operating room. The evidence shows that most of the medical staff in the operating room only speak English. Clear and precise communication between the medical staff and the cleaning staff is essential in the operating room because cleanliness is of paramount importance to patients' health and safety. The rule only applies to job-related discussions in the operating room and does not apply in any other circumstances. Based on this evidence, the EEOC does not find reasonable cause to believe that County Hospital's English-only rule violates Title VII.[129]

Some employers contend they adopt language-restrictive policies in order to improve interpersonal relationships between employees.[130] If coworkers or customers are concerned about exposure to languages they do not understand, or about gossip in these languages, one approach is to address these concerns on an individualized basis without resorting to language-restrictive policies.[131] A language-restrictive policy that has a disparate impact on a particular group cannot be justified if an employer can effectively promote safe and efficient business operations through a policy that does not disproportionately harm protected national origin groups.

Example 30

English-Only Rule Not Justified At a management meeting of Athletic Shoe Co., a supervisor proposes that the company adopt an English-only rule to decrease tensions among its ethnically diverse workforce. Two of the employees he supervises, Ann and Vinh, allegedly made derogatory comments in Vietnamese about their coworkers. Managers conclude that this can be addressed effectively under the company's discipline policy and that it would not justify a practice that adversely affects other workers based on their national origin. Therefore, Athletic Shoe decides that the circumstances do not justify adoption of an English-only rule. To reduce the likelihood of future incidents, supervisors are instructed to investigate the allegations and, if necessary, to counsel line employees about appropriate workplace conduct.

4. Notice and Enforcement of Restrictive Language Policy

Employers must provide adequate notice of language-restrictive policies.[132] "Adequate notice" means effectively communicating to employees under what circumstances they will be required to speak a specific or common language and what will happen if they violate the rule.[133] Notice can be provided by any reasonable means under the circumstances, such as explaining the rule at a meeting, providing personal notice, sending e-mail, or posting the rule.[134] In some circumstances, it may be necessary to provide notice in multiple languages. A grace period before the effective date of the policy generally will be important. Because adequate notice is essential to ensure employee compliance with the policy, "[i]f an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the Commission will consider the employer's application of the rule as evidence of discrimination on the basis of national origin."[135]

Managers often benefit from guidance on how to enforce the policy. Employers are strongly discouraged from "draconian"[136] enforcement of language-restrictive policies. By limiting disciplinary measures to willful violations and not penalizing workers for inadvertent violations linked to their protected status,[137] employers will more likely be able to establish business necessity.

VI. CITIZENSHIP ISSUES

A. U.S. Citizenship Requirements

Title VII is violated whenever citizenship discrimination has the "purpose or effect" of discriminating on the basis of national origin.[138] For example, a citizenship requirement would be unlawful if it is a "pretext" for national origin discrimination, or if it is part of a wider scheme of national origin discrimination.[139] Although Title VII applies regardless of immigration status or authorization to work, employers are prohibited by the immigration laws from hiring individuals who are not authorized to work.[140]

Example 31

Citizenship Requirement as Pretext

for National Origin Discrimination Juanita, a Guatemalan-born naturalized U.S. citizen, was assigned by Staffing Firm to work as a technician for XYZ, an industrial subcontractor that builds equipment for use at nuclear facilities. Staffing Firm's contract with XYZ includes a clause requiring that anyone working on its projects must be a U.S. citizen. Shortly after beginning her first shift at XYZ, Juanita is told to produce a U.S. birth certificate in order to establish her citizenship. Juanita cannot produce a U.S. birth certificate because she was born in Guatemala, but she does provide her U.S. passport to prove her citizenship. The XYZ manager tells Staffing Firm that Juanita cannot continue working at its plant because she cannot provide proof that she was born in the U.S and terminates her employment. Based on these facts, the EEOC finds reasonable cause to determine that Juanita was subject to unlawful national origin discrimination. Additionally, the EEOC determines that Staffing Firm and XYZ may be liable as joint employers.[141]

Example 32

Citizenship Requirement that is Part of Wider

Scheme of National Origin Discrimination Luis, a Venezuelan citizen, files a charge with the EEOC alleging that he was not promoted from his unskilled laborer position to a skilled craft position by Petroleum Company because of his Venezuelan national origin. The investigation reveals that Petroleum Company has many Venezuelan citizens employed in unskilled positions and has a policy requiring that all of its higher-paid skilled workers be U.S. citizens. Unless Petroleum Company provides a nondiscriminatory reason for the citizenship requirement, the EEOC would find reasonable cause to conclude that the purpose was to exclude individuals with Venezuelan ancestry from higher paying jobs because of their national origin.

Federal law requires U.S. citizenship for most federal civil service employment.[142] When U.S. citizenship is required by federal law, the failure to hire an individual because he or she is not a U.S. citizen does not constitute national origin discrimination in violation of Title VII.

Federal law provides a variety of protections for employees and applicants for employment who are discriminated against based on their citizenship status, immigration status, or national origin. As a result, in addition to national origin claims under Title VII, individuals may have claims under federal statutes enforced by departments or agencies other than the EEOC:

Anti-Discrimination Provision of the Immigration and Nationality Act (INA) : The anti-discrimination provision of the INA prohibits employers with four or more employees from discriminating because of citizenship or immigration status against U.S. citizens and certain classes of foreign nationals authorized to work in the United States with respect to hiring, firing, and recruitment or referral for a fee. [143] It also prohibits national origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than four employees that are not covered by Title VII. Additionally, the INA prohibits unfair documentary practices, which include requests for more or different documents than are required to verify employment eligibility, rejections of reasonably genuine-looking documents, or requests for specific documents with the purpose or intent of discriminating on the basis of citizenship status or national origin. [144] The anti-discrimination provision of the INA is enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, in the Department of Justice. [145]

: The anti-discrimination provision of the INA prohibits employers with four or more employees from discriminating because of citizenship or immigration status against U.S. citizens and certain classes of foreign nationals authorized to work in the United States with respect to hiring, firing, and recruitment or referral for a fee. It also prohibits national origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than four employees that are not covered by Title VII. Additionally, the INA prohibits unfair documentary practices, which include requests for more or different documents than are required to verify employment eligibility, rejections of reasonably genuine-looking documents, or requests for specific documents with the purpose or intent of discriminating on the basis of citizenship status or national origin. The anti-discrimination provision of the INA is enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, in the Department of Justice. Fair Labor Standards Act (FLSA) : The FLSA requires, among other things, that covered workers, including those who are not U.S. citizens, be paid no less than the federally designated minimum wage. The FLSA is enforced by the Employment Standards Administration, Wage and Hour Division of the Department of Labor (DOL). [146]

: The FLSA requires, among other things, that covered workers, including those who are not U.S. citizens, be paid no less than the federally designated minimum wage. The FLSA is enforced by the Employment Standards Administration, Wage and Hour Division of the Department of Labor (DOL). Special Visa Programs: Employment of foreign nationals under special visa programs, such as H-1B and H-2A visas, also may be subject to certain requirements related to wages, working conditions, or other aspects of employment.[147]

Example 33

Citizenship Requirement that

May Violate Multiple Statutes Staffing Company routinely hires U.S. citizens as well as non-U.S. citizens who have work authorizations. It verifies all employees' eligibility for employment through E-Verify,[148] but requires non-citizens to submit additional documentation beyond what is required to establish their work authorization. Staffing company does not require extra documentation from U.S. citizens. If Staffing Company has more than four employees, it has violated the antidiscrimination provisions of the INA, which prohibit employers from using discriminatory documentary policies, procedures, or requirements based on citizenship or national origin when determining or re-verifying an employee's work authorization. In addition, if Staffing Company only requires the additional documentation from non-citizens or individuals of particular national origins, Staffing Company has also violated Title VII.[149]

B. Coverage of Foreign Nationals

Title VII prohibits discrimination against individuals in the United States[150] by covered employers, regardless of citizenship or work authorization.[151] A worker's immigration status is not relevant to the underlying merits of a discrimination charge.[152] The Commission takes the position that foreign nationals outside the United States are covered by the EEO statutes when they apply for U.S.-based employment.[153] However, if the employment is outside the United States, individuals who are not U.S. citizens are not protected by the EEO statutes.

VII. RELATED ISSUES

The following subsections discuss issues related to Title VII's prohibition on national origin discrimination, including:

Retaliation for opposing national origin discrimination or otherwise participating in protected activity.

Title VII's application to foreign employers in the United States and American employers in foreign countries.

A. Retaliation

Title VII prohibits retaliation, or reprisal, against an individual because he or she has opposed unlawful national origin discrimination or participated in the EEO process by filing a charge or complaint, testifying, assisting, or participating in any manner in an employment discrimination investigation, proceeding, or hearing.[154]

There are three essential elements of a claim that an employer action was retaliatory:

Employee Protected Activity - opposition to discrimination or participation in any EEO investigation, proceeding, or hearing;

- opposition to discrimination or participation in any EEO investigation, proceeding, or hearing; Materially Adverse Action - any adverse treatment by the employer (beyond a petty slight or a trivial annoyance), that might dissuade a reasonable person from participating in protected activity; [155] and

- any adverse treatment by the employer (beyond a petty slight or a trivial annoyance), that might dissuade a reasonable person from participating in protected activity; and Causal Connection- between the protected activity and the adverse treatment.[156]

The most obvious types of materially adverse actions are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge because the individual engaged in protected activity.[157] Other types of materially adverse actions include threats, warnings, reprimands,[158] transfers,[159] negative or lowered evaluations,[160] or verbal or physical abuse (whether or not it rises to the level of creating a hostile work environment) because an individual engaged in protected activity.

Example 34

Retaliation Violates Title VII Steve and Joseph work for Construction, Inc. Joseph complains to Construction, Inc.'s, human resources department about harassment based on his Polish national origin. In support of Joseph's allegations, Steve provides a statement describing their supervisor's derogatory comments to Joseph about people from Poland. Steve subsequently is not assigned any overtime, and he learns that he was removed from the overtime list. He files an EEOC charge alleging that the denial of overtime is retaliatory. Construction, Inc., states that Steve was not assigned overtime because there was less work. The investigation reveals no significant change in the amount of extra work or overtime available before and after Steve was removed from the overtime list. Other employees with similar qualifications have not experienced a change in the amount of overtime they have been assigned. The EEOC finds that these facts establish reasonable cause to believe that Steve has been subjected to retaliation in violation of Title VII for opposition and participation in an EEO investigation.

Example 35

Threats to Report Immigration Status as Retaliation ABC employs farm workers and other laborers in its agricultural and food processing facilities. ABC suspects that many of its employees may be undocumented workers, but, in order to meet its production demands, ABC does not request documentation to verify the employees' work status. Several ABC employees who are undocumented complain to a supervisor about sexual harassment by male co-workers, including physical assaults and persistent unwelcome sexual remarks and advances. The ABC supervisor does nothing to address the employees' complaints, orders them to return to work, and threatens to expose their immigration status if they continue to complain about the harassment. Threatening to report to government authorities that the workers are undocumented because they have opposed unlawful harassment, or actually making such a report about workers because they engaged in protected activity, is likely to deter them from engaging in protected activity and therefore is materially adverse and actionable as retaliation under Title VII. If an EEOC charge is filed, ABC can be found liable for retaliation. The workers' undocumented status is not a defense.[161]

Sometimes an employer takes a materially adverse action in reprisal against an employee who engaged in protected activity by harming a third party who is closely related to or associated with the complaining employee.[162]

B. Foreign Employers in the United States and American Employers in Foreign Countries

The following sections discuss how Title VII applies to foreign employers in the United States and American employers in foreign countries. With a few exceptions, foreign employers doing business in the United States are covered by Title VII to the same extent as American employers.[163] Similarly, American employers in foreign countries are generally covered by Title VII in the same manner as American employers located in the United States with respect to employees who are U.S. citizens.[164]

1. Foreign Employers

Title VII applies to a foreign employer doing business in the United States to the same extent as an American employer,[165] unless the foreign employer is exempted from coverage by a treaty or international agreement. When permitted by treaty, a foreign employer may discriminate in favor of its own citizens.[166] Title VII does not apply to a foreign employer's actions in a foreign country, provided that the foreign employer is not controlled by an American employer.[167]

2. American Employers in Foreign Countries

Title VII prohibits discrimination against U.S. citizens by American employers operating in foreign countries,[168] unless compliance with Title VII would cause an employer to violate the laws of the foreign country in which the workplace is located.[169] An employer operating in another country that is incorporated in the United States will generally have sufficient ties to the United States to be deemed an American employer.[170] If an employer is not incorporated in the United States or is not incorporated at all (e.g., it is a partnership), various factors will be considered to determine whether the employer has sufficient connections to the United States to make it an American employer. These factors include the employer's principal place of business, the nationality of dominant shareholders and/or those holding voting control, and the nationality and location of management.[171]

Title VII also prohibits discrimination against U.S. citizens abroad by a foreign employer that is controlled by an American employer.[172] The determination of whether an American employer controls a foreign employer is based on the interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control of the American employer and the foreign employer.[173]

VIII. PROMISING PRACTICES

Although each workplace is different, there are many different types of promising policy, training, and organizational changes that employers may wish to consider implementing in an effort to minimize the likelihood of Title VII violations based on national origin.[174]The Commission uses the term "promising practices" here because these steps may help reduce the risk of violations. However, the Commission is aware there is not a single best approach for every workplace or circumstance.

Moreover, adopting these practices does not insulate an employer from liability or damages for unlawful actions. Rather, meaningful implementation of these steps may help reduce the risk of violations, even where they are not legal requirements.

A. Recruitment

Reliance on word-of-mouth recruiting may magnify existing ethnic, racial, or religious homogeneity in a workplace and result in the exclusion of qualified applicants from different national origin groups. As previously noted, word-of-mouth recruiting may result in a Title VII violation where an employer's actions have the purpose or effect of discriminating based on national origin.

To avoid inadvertently excluding some national origin groups, it is a promising practice to use a variety of recruitment methods to attract as diverse a pool of job seekers as possible. Depending on the type of position and the level of skill required, such recruitment tools may include a combination of newspapers of general circulation, as well as those directed at groups underrepresented in the workforce, and online postings; job fairs and open houses; publicly posting job announcements with a variety of community-based organizations as well as widely-distributed sources; conducting outreach through professional associations and search firms; recruiting from internship and scholar programs; and referrals using in-person connections.

An employer may wish to state that it is an "equal opportunity employer" and to draft employment advertisements to notify prospective applicants of all qualifications, including any qualifications related to language ability.

B. Hiring, Promotion, and Assignment

Employers can reduce the risk of discriminatory employment decisions, including hiring, promotion, and assignment decisions, by establishing written objective criteria for evaluating candidates; communicating the criteria to prospective candidates; and applying those criteria consistently to all candidates. If an employer has clearly defined criteria for employment decisions, managers can be more confident that they are selecting the most qualified candidates, and candidates will understand how they will be evaluated. Appropriate objective criteria for employment decisions will be tied to business needs, and help ensure that all individuals are given an equal opportunity when being considered for open positions, assignments, and promotions. An employer's decision to apply criteria that are not related to the performance of the job, such as real or perceived coworker or customer preferences, may improperly screen out individuals based on their national origin. When conducting job interviews, employers can promote nondiscriminatory treatment by asking similar questions of all applicants and by limiting their inquiries to matters related to the position in question. Employers are encouraged to discuss the selection process with officials tasked with making hiring decisions and hold officials accountable to ensure non-discrimination in hiring.

C. Discipline, Demotion, and Discharge

Employers can reduce the risk of discriminatory employment decisions by developing objective, job-related criteria for identifying the unsatisfactory performance or conduct that can result in discipline, demotion, or discharge.[175] One common approach for addressing misconduct is to implement a progressive discipline policy directed at correcting employee misconduct. Such a policy would clearly communicate conduct standards and performance expectations to employees and provide employees with the opportunity to improve their performance before progressive discipline or discharge occurs.

When languages other than English are spoken in the workplace, employers are advised to take proactive measures to ensure that their policies are communicated effectively to all their employees. Such measures may include translating the policies into, and offering training in, the languages spoken by employees.

Employers also will benefit from carefully recording the business reasons for disciplinary or performance-related actions and sharing these reasons with the affected employees. Because any policy related to discipline or poor work performance will require some exercise of managerial discretion, employers are advised to monitor the actions of inexperienced managers and encourage them to consult with more experienced managers when addressing difficult performance issues.

D. Harassment

The most important step for an employer in preventing a hostile work environment is clearly communicating to employees through policies and actions that harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined. Harassment and other policies should be shared with all employees, including temporary and contract workers. In addition, effective and clearly communicated procedures for addressing complaints of national origin harassment are important. An employer's policies and procedures will not be effective if its employees are unable to understand[176] or utilize the complaint process.[177] Therefore, employers are advised to consider translating their policies into the languages spoken by employees with limited English skills, conducting trainings on the policies in these languages, and providing interpreters or other language assistance to ensure that employees can report harassment confidentially.[178] Employers also may train managers on how to identify and respond effectively to harassment,[179] including the importance of proactively addressing conduct that does not initially violate Title VII but may, over time, rise to the level of actionable harassment.

Employees who are harassed are encouraged to act at an early stage to prevent the continuation of the objectionable conduct. This may include notifying the official designated by the employer's complaint or harassment procedures or another appropriate individual who is not specifically designated by the employer to accept complaints about the conduct.

IX. CONCLUSION

The increased cultural diversity of today's workplaces presents new and evolving issues with respect to Title VII's protection against national origin discrimination. This enforcement guidance will assist EEOC staff in their investigation of national origin discrimination charges and provide information for applicants, employees, and employers to understand their respective rights and responsibilities under Title VII.