WASHINGTON – On November 21, the U.S. Equal Employment Opportunity Commission (EEOC) has issued its updated enforcement guidance on national origin discrimination to replace its 2002 compliance manual section on that subject. The Commission has also issued two short user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language. In 2015, only 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination (such as failure to hire, termination, language-related issues, and harassment cases).
Here are a few reminders from the EEOC:
Avoid exclusive use of word-of-mouth recruitment. Word-of-mouth recruitment is the practice of asking current employees to tell their family, friends, or acquaintances about job openings and to refer potential candidates to the employer. Exclusive reliance on word-of-mouth referrals may reinforce the existing racial or ethnic makeup of the workplace and should generally be accompanied by additional recruitment techniques.
An employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individuals accent materially interferes with that job performance. Further, a language fluency requirement is lawful if fluency is required for the effective performance of the position for which it is imposed. For instance, Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in an overwhelmingly English-speaking, non-bilingual community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers who only speak English is limited. Under these circumstances, XYZ’s decision to exclude Jorge from the sales position does not violate Title VII.
Bilingual Job Requirement is not Discriminatory. As with English fluency requirements, requiring fluency in a language other than English is only permissible if it is required for the effective performance of the position for which it is imposed. For example, a business that provides services to numerous Spanish-speaking customers may have a sound business reason for requiring that some of its employees speak Spanish.
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