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Not a question you might anticipate reading, huh? Well, the answer is that each is taking time this summer to remind employers about national origin discrimination. For Donald Trump, this comes through the firestorm raised over his comments on the impartiality of a federal judge because he is of Mexican descent. For the EEOC, this comes through seeking public comment on recently released proposed enforcement guidance on national origin discrimination.

To be clear, Title VII would not apply to the Trump scenario because there is not an employment relationship present between the Donald and Judge Curiel. However, under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against an individual in the workplace on the basis of an individual’s national origin. As the EEOC’s proposed guidance explains, this type of discrimination is directed at an individual because he or she “is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”

Of course, national origin discrimination may take place through commonly understood means of harassing an individual because of his or her national origin or terminating or refusing to hire an individual because of his or her national origin. But there are a few unique ways in which national origin discrimination can take place as well, of which employers should be familiar. For example, the EEOC’s proposed guidance explains that an English-only language policy in the workplace may be unlawful if it is enacted “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.” In fact, the EEOC presumes that such English-only rules violate Title VII.

The proposed guidance is available here. The public may comment on the proposed guidance through July 1, 2016. After this date, the EEOC will review all comments and consider changes to the proposed guidance before finalization. Stay tuned for updates on our blog regarding the release of the final version of the EEOC’s enforcement guidance.

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