Ohio National Origin Discrimination Update: EEOC Issues New Enforcement Guidance

In the wake of a particularly divisive Presidential election where immigration was a frequent topic, the purpose of this post is to provide a timely reminder of the law prohibiting national origin discrimination in all aspects of employment. This post also provides a brief overview of how the new Equal Employment Opportunity Commission (“EEOC”) enforcement guidance outlines examples of national origin discrimination in multiple facets. Should you have any questions about whether you have been discriminated against because of national origin, do not hesitate to contact the attorneys at Bryant Legal, LLC to discuss your legal options.

Title VII of the Civil Rights Act of 1964 and Ohio law prohibit National Origin discrimination.

National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group. (See 29 C.F.R. § 1606.1 (defining national origin discrimination “broadly”)) Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin. (See 42 U.S.C. § 2000e-2; 29 C.F.R. § 1606.2) National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.

National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race. For example, charges filed by Asian Americans may involve allegations of discrimination motivated by both race and ancestry (national origin). Similarly, discrimination against people with origins in the Middle East may be motivated by race, national origin, or even the perception that they follow particular religious practices. As a result, the same set of facts may state claims alleging multiple bases of discrimination.

On November 18, 2016, the EEOC released a new enforcement guidance on national origin discrimination. The EEOC’s continued focus in this area is the agency’s first interpretation of the law on national origin discrimination since its 2002 compliance manual. The guidance notes that the “American workforce is increasingly ethnically diverse;” that the largest numbers of immigrants to the United States in recent years have been from Asia and the Middle East; and that while immigrants are present in “every occupation,” they are highly represented in many of the country’s highest growth jobs, such as those in the service sector.

To that end, the guidance emphasizes the broad definition of national origin discrimination. As noted above, it includes “discrimination because an individual (or his/her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” A “certain place” may include a country, former country (such as Yugoslavia), or a region (such as Kurdistan). Physical, cultural, or linguistic characteristics may include accents or traditional styles of dress. National origin discrimination also encompasses adverse actions based on perceived ethnicity, as well as actions based on an individual’s association with others having a particular national origin.

With respect to accents and language ability, the EEOC explains that an employment decision legitimately may be based on an employee’s accent or fluency in English only if those traits materially interfere with job performance. To meet this standard, an employer must show that effective spoken communication in English is required to perform the duties of the job and that the presence of an accent materially interferes with the employee’s ability to communicate in English.

Retaliation is Prohibited

Importantly, Title VII (and Ohio law) prohibits retaliation, or reprisal, against an individual because he or she has opposed unlawful national origin discrimination or participated in the EEO process by filing a charge or complaint, testifying, assisting, or participating in any manner in an employment discrimination investigation, proceeding, or hearing. (See 42 U.S.C. § 2000e-3(a)).

There are three essential elements of a claim that an employer action was retaliatory:

  • Employee Protected Activity – opposition to discrimination or participation in any EEO investigation, proceeding, or hearing;
  • Materially Adverse Action – any adverse treatment by the employer (beyond a petty slight or a trivial annoyance), that might dissuade a reasonable person from participating in protected activity; and
  • Causal Connection – between the protected activity and the adverse treatment.

The most obvious types of materially adverse actions are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge because the individual engaged in protected activity. Other types of materially adverse actions include threats, warnings, reprimands, transfers, negative or lowered evaluations, or verbal or physical abuse (whether or not it rises to the level of creating a hostile work environment) because an individual engaged in protected activity.

Among other issues discussed by the new EEOC enforcement guidance on national origin discrimination, the attorneys at Bryant Legal, LLC are prepared to advocate on your behalf. Should you have any questions, contact an employment discrimination attorney at Bryant Legal, LLC today.

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