By Paul Kehoe
Amidst a nation characterized by rapidly changing demographics, the EEOC today held a public meeting to discuss national origin discrimination. We attended to get a front row seat for our loyal blog readers. The bottom line – employers should pay attention to this.
Commissioner Yang, in conjunction with Chair Berrien, led the effort to organize the meeting. The Commissioners heard testimony from advocates and management representatives alike to discuss the many challenges in today’s workplace related to national origin discrimination, including English-only policies, language fluency requirements, accents, occupational segregation, customer preference, and harassment. Chair Berrien structured the meeting differently than in the past, where all panelists sat together during the Commissioners’ question and answer period, which facilitated a more back and forth discussion amongst the panelists and Commissioners than in prior meetings.
For different reasons, all who testified suggested some level of support for updated guidance from the EEOC. Employer representatives suggested clarifying certain aspects of the current EEOC guidance and providing best practices, while fully considering employers’ legitimate interests and Title VII’s statutory intent. Advocates for workers suggested providing additional guidance narrowing the permissible instances where English-only policies would be appropriate and addressing “listener” or “implicit” bias as it relates to customer preference and other issues.
While it is unclear whether the EEOC will undertake to revise its national origin guidance issued in December 2002 following the September 11, 2001 attacks, generally speaking, an initial step to updating guidance is to hold a public hearing. Currently, the EEOC’s guidance recognizes that claims may be brought under both disparate treatment and disparate impact theories of discrimination. Of course, in a disparate treatment claim the plaintiff would bear the ultimate burden of establishing pretext, while in a disparate impact claim, the ultimate burden would fall on the employer to establish that the policy at issue was job-related and consistent with business necessity. Updated guidance would likely provide more context for the regulated community, but may ultimately make it more difficult for employers to comply with the EEOC’s view of Title VII.
Will the EEOC choose to update guidance in this area, which by Commission standards was recently completed in 2002, when there are other more pressing guidance documents to update? Only time will tell, but employers should review their language-related policies to determine whether they are in compliance with Title VII or if the policy needs additional consideration.
Readers can also find this post on our Workplace Class Action blog here.