Written Testimony of Michael J. Eastman Vice President, Public Policy Equal Employment Advisory Council

Meeting of November 13, 2013 - National Origin Discrimination in Today's Workplace

Chair Berrien and Commissioners Barker, Feldblum, Lipnic, and Yang: On behalf of the Equal Employment Advisory Council (EEAC), thank you for the opportunity to be here today to discuss national origin discrimination and related issues.

EEAC is a nonprofit association of nearly 300 major employers that, since its creation in 1976, has dedicated itself exclusively to the development and advancement of practical and effective programs to eliminate employment discrimination. EEAC's members are fully supportive of the goal of eliminating employment discrimination in the workplace and establishing policies to promote equal employment opportunity for all employees and applicants for employment.

I understand that today's Meeting is an opportunity for the Commission to hear a wide range of perspectives as it considers whether to revise the chapter in the Compliance Manual addressing national origin discrimination under Title VII¹ and if so, what changes should be made. As the Commission considers these important issues, we offer the following recommendations:

• The chapter should include a brief discussion of applicable legal principles, similar to that included in the Compliance Manual's chapter on Race and Color Discrimination;
• The sections on recruitment and assignment should be expanded consistent with the expanded treatment of these topics in the chapter on Race and Color Discrimination, and in addition the Commission should include a discussion of best practices for employers;
• The Commission should develop best practices for combating stereotypes in the workplace to be included in the section on harassment or as a stand-alone document;
• The chapter's treatment of English-only rules should be clarified to better reflect legal principles from which the Commission's positions are derived;
• The section discussing employment decisions based on accents would benefit from additional examples of conduct that is prohibited and conduct that is permissible;
• The Commission should provide guidance addressing challenges faced when many languages are spoken in a diverse workplace; and
• Any guidance developed by the Commission should include best practices for employers operating abroad who may face challenges posed by local culture or customs in maintaining a harassment-free environment.

Legal Principles

As an initial matter, we recommend that the Commission revise its Compliance Manual chapter on National Origin Discrimination in a manner similar to the more recently revised chapter on Race and Color Discrimination by including an overview of legal principles. This could be done by including a section similar to the Race and Color Discrimination chapter's section on Evaluating Employment Decisions.² The inclusion of such a discussion would be helpful to introduce some of the legal principles that underlie the rest of the chapter on National Origin Discrimination but are not explicitly referenced in the current chapter. For example, the concept of "business necessity" is discussed in the chapter, but it provides little context.

Recruitment and Assignment

The Compliance Manual's discussion of issues related to recruitment is comparatively brief and offers little practical advice for employers. The Commission should consider an expanded discussion similar to that in the Chapter on Race and Color Discrimination that highlights best practices for maintaining a culturally diverse workplace while ensuring full compliance with Title VII.

Consider, for instance, the example of a large employer with many entry-level jobs that require little training or experience and which do not require English proficiency. Such an employer may find itself with large numbers of applicants who are recent immigrants or refugees. While the employer continues to use many diverse recruitment methods, it may find that when it looks at its selection rates by national origin, the selection rates for some groups of applicants are significantly higher than average. This may happen for a number of reasons. For example, current employees of one community may be more aggressively recruiting friends and neighbors to work with the employer, while others do not. The employer may have relationships with one or more community or nonprofit groups, such as a refugee service group, that refers significantly more applicants from a particular national origin group.

Alternatively, the employer may look at the composition of its job groups by national origin and observe that significantly more people of one national origin are assigned to a particular shift or task. While clearly an employer cannot make assignments based on national origin, what if the heightened concentration was due to employee choice? For example, what if an employer found that a high percentage of the workers on one shift were recent immigrants from Somalia. Many of them live in the same housing complex and they requested to work on the same shift so that they may share transportation to and from the complex.

Employers like these may be concerned that, in simply looking at applicant flow data or in looking at the statistical make up of job groups, statistical differences might suggest disparate impact based on national origin even though the employer is actively attempting to recruit a diverse and inclusive workforce. An expanded best practice section may help employers think through these issues and further ensure that they are able to maintain efforts to recruit and maintain a diverse and inclusive workforce without running afoul of Title VII.

Harassment

The Compliance Manual Chapter on National Origin Discrimination, last revised in 2002, states that harassment "is one of the most common claims raised in the national origin charges filed with the EEOC."³ Indeed, a large proportion of the lawsuits filed by the agency alleging national origin discrimination involve hostile work environment claims.

The Compliance Manual clearly conveys the importance of maintaining and communicating anti-harassment policies to employees and training employees on these policies. EEAC's members already have in place strong anti-harassment policies and complaint investigation procedures. In addition, they have established innovative corporate programs aimed at promoting workplace diversity and inclusion. The importance of having a strong and effective anti-harassment policy is not a matter of debate. What is needed is more discussion about successful strategies that have been employed to combat the stereotypes that may exist in the workplace. Accordingly, any revisions to the current chapter on national origin discrimination should include more examples and best practices to better guide employer efforts in that regard.

Language Issues

An individual's language and accent often are closely correlated with the person's national origin. As properly noted in the Compliance Manual, employers may have legitimate business reasons for basing employment decisions on linguistic characteristics.

To the extent that there may be ongoing confusion as to when an employer lawfully can impose English-only rules, impose fluency requirements, or put in place other language-related rules, additional guidance may be in order.

English-Only Rules

In particular, the Commission's guidance on English-only rules could use clarification. The Commission's procedural regulations on broad English-only rules, codified at section 1606.7(a),⁴ say that rules requiring English to be spoken at all times will be presumed to be in violation of Title VII and will be closely scrutinized. A rule requiring English to be spoken only at certain times, according to guidance codified at section 1606.7(b), may be justified by business necessity. These sections are somewhat confusing, and could benefit from additional explanation in the Compliance Manual, especially with regard to the business necessity test.

Accents

The Commission's guidance related to accent discrimination is relatively clear. However, given that cases involving employment actions based on employee or applicant accents are likely to be fact intensive, the Commission may wish to consider including a brief discussion of best practices in this section of the compliance manual. In addition, we would urge the Commission to include more examples to help differentiate between compliant and noncompliant employer actions.

Additional Considerations Regarding Language

In addition to these matters, the Commission may wish to consider some additional language-related challenges that employers face today.

By way of example, consider a hypothetical employer that has a large number of entry-level positions for which English-language proficiency is not required. This company is an attractive employer for those who cannot speak English and its employees speak more than 20 different languages at their facilities. This presents challenges with every type of employee communication from the initial interview, to training and orientation, to communication of benefits and company news.

Language issues have an impact on where employees want to work and may lead to issues similar to those discussed above related to recruitment and assignment. New hires without English proficiency may apply for jobs in department or shifts where people who speak the same language work. It may be that people will self-select themselves in a way that creates differences among various national origin groups. Could such a practice have a disparate impact in violation of Title VII? If so, what should employers be doing to minimize risk?

Discussion in the Compliance Manual's best practices section about such language challenges may be helpful for employers seeking to recruit a diverse and inclusive workforce.

Application Abroad

Since enactment of the Civil Rights Act of 1991, Title VII has applied extraterritorially to protect U.S. citizens from discrimination by American employers operating overseas.⁵ This is a relatively little known provision and thus employers may benefit from additional guidance on this subject.

Consider, for example, a U.S. citizen who works for a U.S.-based multinational employer. After spending a year at the company's office in Dubai, he or she returns home and files a charge with the Commission alleging discrimination based on a hostile work environment because of the individual's national origin as an American. This hypothetical demonstrates the challenge that employers operating abroad may face. On one hand, they may be trying hard to fit in and respect local custom and culture. On the other hand, they are still obligated to comply with Title VII. The Commission may wish to consider revision of this section of the Compliance Manual to include examples demonstrating how a U.S. employer should navigate such concerns.

Conclusion

Thank you again for the opportunity to be here today to discuss national origin discrimination and related issues. I look forward to your questions and our continued dialogue as the Commission considers revising this chapter of its compliance manual. I also look forward to supplementing my remarks with more substantive written comments.

Footnotes

¹ Available at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

² Compliance Manual 15-V, available at http://www.eeoc.gov/policy/docs/race-color.html.

³ Compliance Manual 13-IV, available at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

⁴ 29 C.F.R. § 1606.7(a).

⁵ The provisions are now codified at 42 U.S.C. § 2000e-1.