The United States Equal Employment Opportunity Commission (“EEOC”) announced on June 2, 2016 its intention to issue a revised comprehensive enforcement guidance addressing national origin discrimination under Title VII. The proposed guidance will be open for public comment for thirty days only beginning July 1, 2016.
The EEOC has issued a number of guidance documents in the past several years addressing such matters as pregnancy discrimination, the wearing of religious garb at work and privacy issues associated with employer wellness programs. National origin discrimination includes discrimination on the basis of an individual’s or his or her ancestors’ place of origin. The issue of national origin discrimination was last addressed by the EEOC in a guidance fourteen years ago. In determining that the time was right for new guidance the EEOC commented on the fact that the US workforce “is ethnically diverse, reflecting both immigration and the ongoing assimilation of first- and second-generation Americans.” In addition, in the last decade the immigrant population in 13 states with historically smaller established immigrant communities grew to more than twice the national average.
Although agency guidance is not law, it is the enforcing agency’s interpretation of how applicable laws and regulations should be applied. Thus, a guidance will have substantial persuasive effect and will give the employer a roadmap for avoiding possible claims of discrimination. In fiscal year 2015, 11 percent of private sector charges filed with the EEOC contained a national origin component.
The revised guidance addresses job segregation, human trafficking and intersectional discrimination (discrimination due to a combination of two or more protected bases such as national origin and religion). The EEOC itself identified protecting “immigrant, migrant, and other vulnerable populations” as part of its most recent strategic enforcement plan.
Input may be provided by mail to the EEOC at Public Input, EEOC, Executive officer, 131 M Street, N.E., Washington D.C. 20507 or via email by using www.regulations.gov.