By Deryn Sumner, December 14, 2016
The EEOC issues guidance on various topics related to discrimination, including harassment, use of arrest and conviction records in employment, and disability discrimination. As Supreme Court cases and new laws change the landscape of discrimination law, the guidance needs to be updated to reflect these changes. This is a large undertaking as the guidance is considered official EEOC policy, and the Commission seeks public comment and must obtain approval from the majority of the Commissioners before issuing the guidance. In the last three years, the EEOC has updated and issued three enforcement guidance areas: pregnancy discrimination and related issues, retaliation and related issues, and now, in November 2016, national origin discrimination and related issues. Although the enforcement guidance relating to disability discrimination now contain a note stating that the ADA Amendments Act of 2009 made significant changes, the EEOC has not yet issued revised guidance regarding disability discrimination.
The EEOC updated the national origin discrimination guidance for the first time since 2002. Along with the guidance, it issued a question and answer series and a small business fact sheet. I find the question and answer series to be very helpful in providing advice to managers and employees, as the questions address likely hypotheticals and are written in plain language. The EEOC sought public comment in July 2016 before issuing the final revised guidance.
The guidance includes an overview, a section on what national origin discrimination is and how it can intersect with other bases of discrimination, and issues relating to language, accent, and citizenship issues. Although not an issue normally faced in federal sector employment discrimination cases, the EEOC does make clear that Title VII prohibits discrimination against individuals regardless of their citizenship or work authorization, and that immigration status is not relevant to the underlying merits of a charge of discrimination. Further, threats to report an employee’s immigration status can constitute retaliation if the employee has engaged in protected EEO activity.
I found the section on intersectional discrimination to be the most interesting, because often when consulting with clients or potential clients, it can be difficult to parse through the exact basis that is leading to the disparate treatment or harassment. For example, a female employee who is a practicing Muslim from an Arab country who objected to workplace comments regarding her religion or country of origin may face discrimination for any one of, or perhaps multiple protected bases. The Updated Enforcement Guidance regarding national origin discrimination can be found here:
https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.
