EEOC updates guidance on ‘national origin’ discrimination

Title VII of the federal Civil Rights Act bars employers from discriminating based on national origin. In other words, employers cannot fire, refuse to hire, demote or take any other negative action against a worker or job candidate based on where that person or his or her ancestors come from. Employers also can’t take negative employment actions against someone who seems to have physical, cultural or language traits that they associate with a particular ethnic or national group (i.e., having an Italian accent, wearing traditional Indian garb or having a stereotypically Jewish last name or facial features).

This area can be a minefield for employers, so the Equal Employment Opportunity Commission recently issued updated guidance for employers on how to stay out of trouble.

For example, with respect to job openings, the EEOC urges employers to advertise and recruit in ways that attract the most diverse candidate pool possible, such as posting online, advertising at job fairs and publicly posting job announcements with various community organizations, instead of using techniques that may “screen out” certain groups, such as word-of-mouth advertising or only posting in places that will reach a homogeneous audience.

Similarly, with respect to hiring, promotion and job assignments, the EEOC warns against using “customer preference” as a basis for discriminatory action. That means it’s important to be careful about deciding who will be the “face of the company” based on appearance or accent. Instead, employers must develop more objective criteria for public-facing positions like cashiers, greeters, hosts/hostesses or retail floor workers.

Finally, be aware that the EEOC will take a harsh view toward English proficiency requirements or “English-only” policies unless they are legitimately necessary to effectively and safely perform the job.

These are complicated issues, so it’s important to go over your policies with an employment attorney to make sure you’re not doing anything that could land your company in hot water.