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EEOC targets national origin discrimination, observers expect guidance update


Facing major changes in workforce demographics, the Equal Employment Opportunity Commission is widely expected to revise its 11-year-old guidance on national origin discrimination.

The guidance was last revised in 2002 in response to the Sept. 11, 2001, terrorist attacks. Since then, however, the makeup of the U.S. labor force has changed and more dramatic changes are predicted.

For example, Hispanics made up 11.7% of the labor force in 2000, rising to 13.3% in 2005 and are projected to reach 24.3% by 2050, according to the U.S. Department of Labor. Asians made up 4.4% of the labor force in 2000 and 2005, but are projected to reach 8.3% by 2050.

One major concern that experts think will prompt the EEOC to issue updated guidance, affecting enforcement of Title VII of the Civil Rights Act of 1964, is English-only policies in the workplace.

Elizabeth Torphy-Donzella, a defense attorney and partner at Shawe Rosenthal L.L.P. in Baltimore, said it is not that the current guidance is inadequate “as much as there are gaps.

“I think the diversity of the workforce has changed, the political coinage has changed, and so there's more that can be said and more that can be said differently. Whether that turns out to be something that employers are going to agree with is a different issue,” she said.


“The commission is looking at this increasingly diverse workforce, and wants to ensure that its policies and the way that it does its investigations are in keeping with that demographic changing,” said Rebecca Smith, Seattle-based deputy director of the National Employment Law Project, an employee advocacy group.

“There have been a couple of consent decrees (on the issue) that have come out in the past two months,” said David J. Shlansky, managing partner at Shlansky Law Group L.L.P. in Waltham, Mass., “and I think it's becoming a hot topic for them, particularly concerning Hispanics and Pacific islanders.” (See related story).

Peter J. Gillespie, of counsel at Fisher & Phillips L.L.P. in Chicago, also pointed to a “memorandum of understanding” between the EEOC's El Paso, Texas, office and the consulate general of Mexico in El Paso.

The August memorandum establishes an ongoing partnership between the agency and consulate to provide information to Mexican citizens working in the United States about their rights under U.S. law, which protects workers from discrimination regardless of documentation status.

The EEOC discussed the issue during a public hearing last week.

“There was at least the suggestion from virtually all the participants that updated guidance, when it comes to national origin, is necessary, if only because of the changing demographics of the country and the situations that are being presented to the EEOC,” said Paul Kehoe, senior counsel at law firm Seyfarth Shaw L.L.P. in Chicago, who attended the meeting.


When asked about updating its manual, the EEOC spokeswoman said, “I have no information about a specific timeline.”

“The purpose of the meeting was to hear from our stakeholders and to examine the various national origin issues that exist in today's workplace,” the spokeswoman said. Those issues include discrimination in recruitment and hiring, work assignments, pay, language and accent issues, harassment and retaliation.

She said the agency's strategic enforcement plan for fiscal years 2013-16 includes protecting immigrant, migrant and other vulnerable workers.

One issue that arises due to the increase in Hispanics in the workforce is English-only policies.

“I don't think many employers truly have English-only policies,” Mr. Kehoe said.

Those that do likely have limited policies, such as requiring clerks who work in the front of the store to speak English, or for safety reasons on a manufacturing floor.

“Even if you have a neutral policy on this issue,” the question employers must answer is does it disparately affect protected groups, said Barry A. Hartstein, a shareholder at Littler Mendelson P.C. in Chicago.


“It was clear to me that the panelists (at the EEOC hearing) agreed that the most difficult issue that employers and employees face around national origin discrimination involve issues related to language,” said Ms. Torphy-Donzella.

Legal experts say the hearing also may reflect an interest in addressing human trafficking in the employment context, where migrant workers may be being exploited.

“There's been a coordination among federal agencies to prosecute these (human trafficking) cases,” said Douglas J. Farmer, a shareholder at Ogletree, Deakins, and Nash, Smoak & Stewart L.L.P. in San Francisco.

The hearing also may have been in furtherance of President Barack Obama turning his sights to immigration reform, said Richard B. Cohen, a partner at Fox Rothschild L.L.P. in New York.

Karen Glickstein, a shareholder at Polsinelli P.C. in Kansas City, Mo., said that national origin cases also go “hand-in-hand” with issues that include religious discrimination, such as Muslim dress issues, which also has been the focus of recent litigation.