EEOC Issues New Enforcement Guidance on National Origin Discrimination
On November 21, 2016, the US Equal Employment Opportunity Commission issued its updated enforcement guidance on national origin discrimination to replace its 2002 compliance manual section on that subject.
The EEOC also issued two short user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language.
According to EEOC Chair Jenny R. Yang, “This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment. The examples and promising practices included in the guidance will promote compliance with federal anti-discrimination laws and help employers and employees better understand their legal rights and responsibilities.”
The enforcement guidance discusses Title VII’s prohibition on national origin discrimination as applied to a wide variety of employment situations and highlights practices for employers to prevent discrimination. The guidance also addresses developments in the courts since 2002, as well as topics such as job segregation, human trafficking and so-called “intersectional discrimination.” According to the EEOC, intersectional discrimination 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." 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.
In fiscal year 2015, approximately 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination. Many commentators believe it is likely that the number of national origin discrimination claims will continue to increase, at least in the short term.
If you have any questions about this guidance, please contact the author, any other member of the Arent Fox Labor & Employment Group, or the Arent Fox professional who regularly handles your matters.