On Wednesday, November 13, 2013, the U.S. Equal Employment Opportunity Commission held a public meeting on the issue of national origin-based discrimination in the workplace at its headquarters in Washington, DC.

A variety of advocacy groups and non-profit organizations participated alongside federal sector officials and counsel from private law firms. The range of topics included discriminatory treatment in a variety of areas related to national origin such as job assignments, pay inequity, recruitment, hiring, harassment, retaliation, and issues related to language and/or accent.

As one of six areas of priority in its strategic enforcement plan, the EEOC identified issues affecting immigrants, migrants, and other vulnerable worker populations that suffer national origin-based discrimination. Headed by EEOC General Counsel David Lopez, and Lead Coordinator Administrative Judge Lucilia Rosas, in 2011 the EEOC established an in-house team to address discriminatory practices, particularly with regard to immigrants, migrants, and other vulnerable workers such as victims of human trafficking. Education and outreach efforts have been ramped-up in areas with populations where English is spoken little or not at all. Materials and resources developed by the EEOC team are available in Spanish, Arabic, Chinese, Korean, Russian, Vietnamese, and Haitian-Creole.

National origin-based discrimination may occur in a variety of ways, including the use of screening tools by employers such as English-only requirements, or citizenship status, to exclude individuals from employment. Attendees stated the EEOC should provide clearer guidance that such screening tools or exclusionary job requirements should not be utilized absent a showing of “business necessity.” And, the EEOC should provide concrete examples of when English-only requirements are, and are not, appropriate. Given competing priorities, representatives of the EEOC were uncertain whether updated guidance on national origin-based discrimination would be forthcoming anytime soon.

And, problems associated with “job segregation” were discussed. In “job segregation,” immigrants, migrants, and other vulnerable workers are placed in positions that involve little or no customer contact. Typically, these segregated jobs offer less pay, and less opportunity for promotion or advancement. It was noted that, often in these situations, the employer cites to its “corporate image,” or presumed “customer preference,” for the segregation. The concept of “intersectional discrimination” also was discussed; that is, certain individuals may be the victims of discrimination on multiple bases such as religion, color, or race in addition to national origin.

Finally, “code switching” was discussed. This is where a bilingual employee changes from speaking English to his or her native language, which is a common occurrence for bilingual employees. Attendees encouraged the EEOC to develop guidance making clear that “code switching” should not serve as the basis for disciplining an employee.

Attendees of the meeting encouraged the EEOC to update its guidance in this area, and be more proactive in addressing national origin-based discrimination. Given the rapidly changing demographics of the country, it was agreed that this issue probably will take on greater prominence in the years to come.

For more information, go to www.eeoc.gov.