National origin discrimination is certainly in the news today. With large numbers of people seeking refuge in the United States from the wars and
dismal conditions in their home countries and due to the rise in terroristic act national origin discrimination has been at the forefront of many discrimination cases. It is however not new to the list of protected categories. National origin discrimination is one of the original protected categories under the Title VII of the Civil Rights Act of 1964. Today the list includes Hispanics or those of Middle Eastern roots, but in the past it has included the Irish, Germans, Italians and Jews of all nationalities. So it is no wonder it was an early protected category.
What is covered?
According to the newly released guidance provided by the EEOC on November 18th national origin harassment is “conduct that is severe or pervasive enough to create a work environment that an individual perceives as hostile, and a reasonable person would find intimidating, hostile, or abusive. Title VII prohibits such harassment…”
Employers cannot make employment decisions on the basis on national origin, such as satisfying a customer base by catering to the biases of that customer base.
What about language use?
The prime consideration in selecting someone on their ability to speak or write in English is job performance. As the provided guidance says:
Employers may have legitimate business reasons for making language-based employment decisions. It is important, however, to ensure that these decisions do not violate Title VII.
An employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individual’s accent materially interferes with that job performance.
A language fluency requirement is lawful if fluency is required for the effective performance of the position for which it is imposed.
A language-restrictive policy may violate Title VII if it is applied at all times in the workplace, but such a policy may be lawful in limited circumstances when needed to promote safe and efficient job performance or safe and efficient business operations. Of course, it should not be adopted for discriminatory reasons or applied in a discriminatory way.
(My emphasis in bold)
Who is covered?
Some employers may be tempted to think that not everyone is covered by the prohibition against discrimination. They think that someone who is in the country illegally is not covered by the protection of the law. Think again. The law applies to all foreign nationals working in the United States regardless of their immigration status.
The lesson here is just don’t discriminate. You can find the guidance by clicking on this link.