Published by MoASBO, June 2016

Marking the first revisions in almost 15 years, the U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued proposed enforcement guidance on national origin discrimination. Public comment on the proposal closed at the beginning of July and approval of the guidance is expected before the end of 2016. After amendments are finalized, the new guidance will be incorporated into the EEOC’s Compliance Manual and used by investigators when making cause determinations and considering litigation for charges alleging national origin discrimination.

In light of the fact that there have not been significant changes to this substantive area of law since the prior guidance was issued in 2002, the proposed revisions likely signal a change in emphasis for EEOC investigations. Unlike recent government enforcement around Title IX and sex/gender, the proposed guidance does not stem from a broad re-interpretation of Title VII. Instead, the scope of revision suggests that the EEOC is going to push the envelope by changing how and what it investigates, all with the goal of expanding employee protections associated with national origin.

The new guidance can and will affect school districts, even those districts who have historically had a relatively homogenous workforce. This article highlights the aspects of the proposed guidance most relevant to school districts, identifying what central administrators should focus on to help reduce the risk of Title VII violations based on national origin.

Background and Legal Framework

Overall, the EEOC is tasked with protecting employees and job applicants under Title VII of the Civil Rights Act of 1964 against employer discrimination based on aspects of ethnicity, national origin, sex, or religion. Employees and applicants are also protected from retaliatory actions following the filing of complaints with the EEOC.

Nationally, there has been a noticeable increase in the number of discrimination charges filed with (and investigated by) the EEOC over the last 8 years. As a percentage, however, the number of charges alleging national origin discrimination has remained steady over this time period, hovering around 10-11% of all charges.

As defined by the EEOC, “national origin” includes the “physical, cultural, or linguistic characteristics of a particular national origin group.” Unlawful discrimination can be based on actual or perceived national origin. A charge of discrimination related to national origin can allege a variety of unlawful actions by the employer: termination, discipline, failure to hire, harassment, and language-related issues.

The recently proposed guidance touches on a wide range of topics related to national origin discrimination, including intersectional discrimination, human trafficking, harassment, accent and fluency, national security requirements, and citizenship issues. Although the EEOC’s enforcement guidance does not have the same legal effect as enacted regulations, courts will often defer to EEOC’s guidance in their rulings based on the agency’s knowledge and expertise.

A complete copy of the proposed enforcement guidance can be read on the EEOC’s website. Below are several implications of the new guidance that school districts should be aware of when making future HR decisions.

Intersectional Discrimination and Overlapping Claims

Because the EEOC expects claims of national origin discrimination to overlap with allegations of race, color, or religious discrimination, the proposed guidance introduces the idea of “intersectional” discrimination. In short, adverse employment action will be reviewed for targeting an individual who is a member of two or more protected classes. For instance, a school district alleged to have discriminated against a Hispanic woman could be investigated for not only race and sex discrimination, but also national origin discrimination. Or, an allegation made by a Muslim employee may result in an investigation into both religious and national origin discrimination.

A focus on intersectional discrimination will lead to an increased number of charges alleging multiple bases of discrimination. By overlapping claims and defining the protected class to include actual and perceived national origin, investigators will have the discretion to expand the scope of their review and examine a wider cross-section of a school district’s HR policies and practices.

Recruitment of Job Applicants

If a school district’s current staff is ethnically or racially homogenous, the EEOC is more likely to review how the district advertises and recruits for open job positions as part of its investigation of a discrimination charge. In particular, the EEOC may consider “word-of-mouth” recruitment or advertisement of a job posting to a limited audience as evidence of a purposeful intent to exclude applicants based on national origin.

School districts are encouraged to diversify its recruiting methods and advertisement locations to mitigate against a claim that the district’s ethnically or racially homogenous workforce reflects a discriminatory attitude toward national origin.

Discrimination Policies in Various Languages

As part of its investigation, the EEOC will consider whether a school district published its discrimination policies in the primary language of an employee if the district knew, or should have known, of an employee’s limited language capabilities. This can be especially important if the district is making a Farragher-Ellerth affirmative defense — defending against a discrimination claim by using the existence of a harassment policy to demonstrate reasonable care to prevent harassing behavior. To be effective under the proposed guidance, the harassment policy and complaint mechanism must be accessible in the native language of an employee with limited English proficiency.

As a general rule, then, a school district should publish harassment policies and conduct harassment training in languages that employees understand.

Accent and Fluency

Except in extremely limited circumstances, a school district cannot take adverse employment action based on an individual’s accent. Language fluency requirements, however, are permissible if they are necessary to the particular job, i.e., if use of the designated language is job-related and consistent with business necessity. A school district is going to have a much easier time demonstrating the necessity of English fluency for a classroom teacher than a custodian or maintenance employee.

Tangential to fluency requirement, the EEOC’s new guidance explicitly notes that employers who are worried about gossip or harassment or unprofessionalism that takes place in the non-designated language should address the misconduct through discipline and harassment policies rather than through banning the use of the language.

Social Security Numbers

Under the proposed guidance, job applicants should not be rejected solely because they do not have a Social Security number, unless a SSN requirement is job-related and consistent with business necessity. In all other cases, employees should be allowed to work if they have applied for but have not yet received a SSN. This guidance mirrors the position already taken by the U.S. Citizenship and Immigration Services and the Social Security Administration.

Liability for Joint Employer

If a school district outsources any of its staff or utilizes an outside company for services, the district may be considered a joint employer under Title VII. Regardless of whether the district actually exercises the right to control the worker’s employment, a school district can find itself defending a claim of national origin discrimination based on the actions of the outside company. Districts should review all outside services (e.g., transportation, food, counseling, tutoring) to ensure the outsourcing or outside company is taking necessary and proactive steps to prevent national origin discrimination.

Conclusion

Ultimately, the EEOC’s proposed enforcement guidance signals a new interest in national origin discrimination. School districts would be best served if they take these change as an opportunity to review and update their nondiscrimination policies. HR practices that emphasize clearly defined and objective criteria for hiring, promotion, job assignment, discipline, and termination will help a district defend itself against the next charge of discrimination filed with the EEOC.