AICPA Insurance Programs

Guidance on National Origin Discrimination in the Workplace
Post-September 11th

According to the U.S. Census bureau, about one in ten Americans is foreign-born. That is why it is important for employers to increase their sensitivity to discrimination based on religion, national origin and ethnicity. In an effort to monitor backlash discrimination, the Equal Employment Opportunity Commission (EEOC) has been tracking charges alleging discrimination or retaliation related to the events of September 11, 2001, by individuals who are, or are perceived to be, Muslim, Arab, Afghani, Middle Eastern or South Asian. Alarmingly, between September 11, 2001 and September 10, 2002, the EEOC received 706 charges on the basis of Muslim religion, more than double the 323 charges received during the comparable period one year earlier.

The Law

Title VII of the Civil Rights Act of 1964, which covers employers with fifteen or more employees, bans employment practices that foster national origin discrimination. The Act makes it illegal to discriminate because of a person's birthplace, ancestry, culture or language. This means people cannot be denied equal employment opportunity because they or their family are from another country, because they have a name or accent associated with a national origin group, because they participate in certain customs associated with a national origin group, or because they are married to or associate with people of a certain national origin. Title VII protects all workers in the United States, whether born in the United States or abroad and regardless of citizenship status.

New Guidelines

The EEOC enforces the federal prohibition against national origin discrimination in employment under Title VII and has recently issued new guidelines in their National Origin Discrimination Compliance Manual. The manual explains the prohibition against national origin bias and emphasizes best practices aimed at fostering work environments that are free of such discrimination. The commission addresses a wide range of issues that arise in claims of national origin discrimination, including hiring decisions, harassment, and language issues.

Some key points discussed in the EEOC's Compliance Manual:

• An employer may enforce a dress code; however, if the dress code conflicts with the religious practices of an employee, the employer must modify the dress code unless doing so would cause the employer undue hardship. A minor financial or administrative burden on the employer is not considered undue hardship.
• An employment decision based on foreign accent is not illegal if an individual's accent materially interferes with communication skills necessary to perform job duties.
• Title VII permits employers to adopt English-only rules if they are adopted for nondiscriminatory reason and are justified by business necessity such as for safety or efficiency reasons.
• A "U.S. citizen only" hiring policy is illegal--the Immigration Reform Control Act of 1986 (IRCA) makes it illegal for employers with four or more employees to make U.S. citizenship a requirement for employment.

Best Practices

The EEOC suggests the following best practices for promoting non-discriminatory treatment in the workplace:

• Establish written objective criteria for evaluating candidates for hire or promotion and apply those criteria consistently to all candidates.
• Ask the same questions of all job applicants and inquire only about matters that relate to the position in question.
• Formulate clearly defined criteria for employment decisions. Appropriate objective criteria for employment decisions should be tied to business needs since criteria that are not business-related sometimes improperly screen out individuals based on national origin.
• Decisions to discharge or lay off employees must be based on nondiscriminatory reasons, such as seniority, or quality or quantity of work, rather than national origin, religion, or other prohibited factors.
• Develop and apply clear objective criteria for discipline, demotion, and discharge decisions such as a progressive discipline policy directed at correcting employee misconduct.
• Monitor the actions of inexperienced managers and encourage them to consult with more experienced managers when addressing difficult issues.

Harassment-free Workplace

Along with discrimination, Title VII also prohibits harassment on the basis of national origin. According to the EEOC, harassment is one of the most common claims raised in national origin charges filed with the Commission. Employers have a responsibility to maintain a workplace free of national origin harassment. The EEOC describes unlawful harassment as follows:

National origin harassment violates Title VII when it is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive. Harassment based on national origin can take many different forms including ethnic slurs, workplace graffiti, or other offensive conduct directed towards an individual's birthplace, ethnicity, culture, or foreign accent. A hostile environment may be created by the actions of supervisors, coworkers, or even non-employees, such as customers or business partners.

Minimizing Liability

The U.S. Supreme Court has established the following standards for employer liability for national origin harassment. (1) An employer will be held liable for unlawful harassment by a supervisor unless it can show that the employer exercised reasonable care to prevent and correct promptly any harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. (2) An employer is liable for unlawful national origin harassment by coworkers or non-employees if the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

The EEOC suggests three important measures employers can take to prevent harassment and minimize employer liability:

• Clearly communicate to employees that national origin discrimination will not be tolerated and violators will be disciplined.
• Clearly communicate to employees the policies and procedures for addressing complaints of national origin harassment.
• Train managers on how to identify and respond effectively to harassment.

You should immediately investigate and resolve all complaints of discrimination made by employees. Also, it is important to note that you may not retaliate against a worker who makes a discrimination complaint. Title VII prohibits retaliation against an individual because he or she has opposed unlawful national origin discrimination or participated in the complaint process by filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.

Encourage Diversity and Tolerance

Businesses benefit from a diverse workforce. The best way to prevent national origin discrimination claims and minimize your liability for such claims is to utilize neutral hiring practices and actively encourage workplace diversity and tolerance. Now is a good time to review your firm's written policies and procedures and make sure they address national origin discrimination and harassment. The complete EEOC National Origin Discrimination Compliance Manual as well as charge statistics and links to documents and resources that provide further information on the topic can be found at http://www.eeoc.gov/origin/index.html.

Read this article, as well as other articles and information on Employment Practices Risk Reduction Strategies in the Spring 2003 EmployerGardian Newsletter.

By Claire A. King, JD, Director of Risk Management for Aon Insurance Services, the national administrator for the AICPA Professional and Personal Liability Insurance Program.