Question: A lot of conversation is occurring in my workplace about immigration and national origin. I believe this is due to the current presidential campaign. As an employer, I am committed to having a workplace free of harassment and discrimination, but I recognize my employees’ right to converse about topics in the political spotlight. Where is the line between mindful discussion and discrimination?
Answer: Federal and state law prohibit an employer or person in the workplace from discriminating against or harassing an applicant or employee based on actual or perceived national origin status. This includes unfavorable treatment because of a person’s ethnicity, physical characteristics, name, accent, or because the person is married to or associated with a person of a certain culture. In 2002, the U.S. Equal Employment Opportunity Commission (EEOC) issued a comprehensive Compliance Manual on National Origin Discrimination under Title VII of the Civil Rights Act of 1964. Recently, the EEOC committed to updating the Compliance Manual to provide guidance to employers. “The EEOC has identified protecting immigrant, migrant, and other vulnerable populations as a national strategic priority” said the EEOC’s June 2016 press release announcing the proposed updated enforcement guidance.
The 60-page proposal articulates EEOC policy, defining national origin employment discrimination and its impact on employment decisions, such as hiring and promoting. An example of prohibited conduct given by the EEOC is a retailer requiring Filipinos to work in lower-paying stocking jobs away from public contact because of an actual or assumed customer preference for non-Filipino sales representatives. The proposal warns that Title VII also prohibits recruitment practices that purposely or unjustifiably have the effect of excluding people based on national origin, such as word-of mouth advertising or sending job postings only to areas or audiences that are not ethnically or racially diverse. The guidance provides employers with “Promising Practices,” which are proactive measures to help reduce the risk of Title VII violations, foster an inclusive workplace, and enhance productivity. Measures include translating company policies into the languages spoken by employees with limited English skills, conducting trainings on the policies in those languages, and providing policies to all employees, including temporary and seasonal workers. “The most important step for an employer in preventing a hostile work environment is clearly communicating to employees through policies and actions that harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined,” states the proposed guidance. During the 30-day public comment window on the proposed guidance groups such as the Mexican American Legal Defense and Educational Fund and the American-Arab Anti-Discrimination Committee (ADC) made comments. That public comment window closed in July. The ADC stated that “In the midst of the current emotional political environment, employees may be unduly prone to fear or heightened prejudice in the workplace. If the business establishes an aspirational policy that expects a higher behavioral standard than only avoiding harassment, such as ‘employees treat one another with dignity and respect,’ employees may understand that behavior does not need to be extreme for them to raise concerns. Employees need to understand that the company wants to be aware of concerning or disruptive behavior, even if it is not considered unlawful harassment.”
The proposed guidance is available at https://www.regulations.gov/#!docketDetail;D=EEOC-2016-0004.
Also available are “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern” at https://www.eeoc.gov/eeoc/publications/muslim_eastern_employers.cfm.