The EEOC’s Very Broad Approach to National Origin Discrimination and English-Only Policies

By Fiona W. Ong - Shawe Rosenthal LLP

March 4, 2021

In my next installment of what has turned out to be a series on the articles written by EEOC staff members for its quarterly Digest of Equal Employment Opportunity Law, I offer you some interesting tidbits from its most recent publication, addressing national origin discrimination under Title VII – a protected characteristic that is surprisingly wide in scope and, as the EEOC notes, often overlaps with race, color, or religious discrimination. As I noted previously, although these articles are targeted towards federal agencies, they offer private employers some insight as to the EEOC’s approach to these issues.

Now, the EEOC admittedly defines national origin “broadly” to include not only the employee’s place of origin, but also that of their ancestors. And “place of origin” is also quite broadly defined as a current or former country, as well as a region that is closely associated with a particular national origin group. The EEOC asserts that national origin discrimination encompasses an employee’s ethnicity or accent as well, and further defines an “ethnic group” as “a group of people sharing a common language, culture, ancestry, race, or other social characteristics.” And, by the way, the EEOC’s definition also includes discrimination based on a perceived national origin – even where the perception is incorrect.  (Yikes!)

But wait – there’s more! According to the EEOC, national origin discrimination also includes unfavorable treatment “that raises national origin considerations” in an associational discrimination context – such as marriage or other connections to those of a particular national origin.  It also includes membership in or attendance at organizations, schools and places of worship for a particular national origin group.  And (because there’s still more) it includes discrimination based on physical, linguistic (i.e. accent), and/or cultural characteristics (e.g. dress) closely associated with a national origin group.  Further, the EEOC notes that national origin discrimination can occur between members of the same group. (Yeah, that one took me a moment too).

The EEOC then turns to the types of national origin discrimination that can occur. First, there is “disparate treatment,” which involves discrete, adverse employment decisions based on an individual’s actual or perceived national origin. Thus, for example, refusing to hire an individual because of fears that a customer might react negatively to their clothing – such as a hijab or a sari – would constitute illegal discrimination. The EEOC states that, “[r]efusing to hire someone because customers or coworkers may be ‘uncomfortable’ with the person’s national origin violates Title VII’s prohibitions against discrimination.”

Harassment based on national origin is also illegal discrimination. This includes offensive or derogatory remarks about an individual’s national origin, accent or ethnicity, as well as offensive conduct because of an individual’s birthplace, ethnicity, culture, language, or accent, where the remarks or conduct are so frequent or severe that it creates a hostile work environment or results in an adverse employment action. The EEOC offers the example of a case in which the supervisor derogatorily and repeatedly called the employee an “Irishman,” while denying him two positions.

And finally, the EEOC addresses “English-only” policies in the workplace, stating that such policies should be carefully scrutinized.  The EEOC asserts that a policy that requires English at all times is  burdensome and may disadvantage an employee’s employment opportunities, since an employee’s primary language is often a national origin characteristic. According to the EEOC, “[a]n ‘English-only rule’ is only allowed if it is necessary to ensure the safe or efficient operation of the [employer]’s work, and is put in place for nondiscriminatory reasons.” Thus, an English fluency requirement is only permissible if fluency is actually required to perform the job. And employment decisions may not be based on accent, unless the accent “seriously interferes” with the employee’s ability to do the job.

Of particular interest, the EEOC highlights a case involving a not uncommon rule that required employees to use English when discussing work topics in the work environment. The EEOC found this rule to constitute illegal national origin discrimination, rejecting the employer’s argument that another employee felt excluded because “there was no evidence of a widespread problem involving language-related interpersonal conflicts or derogatory or intimidating conduct.” Rather, the EEOC asserted, the employer should have individually counseled employees about appropriate workplace conduct. (Well, that’s rather interesting – so the EEOC seems to suggest that such a rule would be acceptable if lots of employees complained, but not just one employee. Remedial but not preventative. Huh. And they also describe the individual counseling as “non-discriminatory,” even though the counseling may involve telling the employee not to use language to exclude other co-workers. Huh again.)

And the EEOC highlights another case in which it found illegal discrimination when an employer required its employee to communicate with a contractor through a supervisor or senior employee after the contractor complained of a “language barrier.” The EEOC faulted the employer for imposing the requirement without first investigating whether the contractor’s complaint was true.

So, the bottom line here is that employers should be aware that the EEOC will apply a veeeeeery broad scope to the concept of national origin discrimination. The EEOC warns that managers who learn about workplace harassment, including that based on national origin, “are responsible for promptly taking steps to correct the conduct.” It also reminds employers of the importance of clear and effective policies prohibiting workplace harassment. And it further warns employers to ensure that workplace policies – including English-Only policies – are drawn narrowly to avoid illegal discrimination on the basis of national origin.