EEOC to Examine National Origin Discrimination

EEOCAn aspect of discrimination law that is gaining increasing attention is, not surprisingly, national origin discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC)will meet on Nov. 13 in Washington, DC, to examine issues and hear testimony related to the problem of national origin discrimination.

The backdrop of the EEOC’s meeting is impending immigration reform and the rise in the percentage of foreign-born workers in the U.S. workforce.

The Bureau of Labor Statistics (BLS) reported in May that there are 25 million foreign-born persons in the U.S. labor force, making up 16.1 percent of the total workforce. Hispanics accounted for 48.3 percent of the foreign-born labor force in 2012 and Asians accounted for 23.7 percent. The BLS reports that  the proportion of the foreign-born labor force made up of 25 – 54 year olds (75.6 percent) is now higher than for the native-born labor force (63.4 percent).

Under Title VII of the Civil Rights Act of 1964  and EEOC rules “national origin” discrimination includes the denial of equal employment opportunity because of an individual’s place of origin, their ancestor’s place of origin,  or because of the physical, cultural or linguistic characteristics of a national origin group.

Counsel for employers, in written testimony submitted to the EEOC, describe the enormous challenges faced by employers in tackling discrimination issues involving foreign-born workers.

Douglas J. Farmer, of Ogletree, Deakins, Nash, Smoak & Stewart, writes that  many foreign-born workers have little or no understanding of basic legal prohibitions on discrimination or harassment, have never seen an anti-harassment policy, and have never participated in anti-harassment training.  In one workplace, he states, an employer was confronted with a workforce in which workers spoke 60 different languages and dialects.

“Several of our employer clients have expressed concern that employer cost and lack of technical expertise present significant obstacles to the translation and effective implementation of policies and training programs,” Farmer writes.

He urged the EEOC to make anti-discrimination and harassment policies and educational programs available in multiple languages  to help employers convey these concepts to foreign-born employees in a cost-effective manner.

Rebecca  Smith, Deputy Director of the National Employment Law Project (NELP), urges the EEOC to address  “second-generation discrimination” practices that involve cultural attributes (language, accent) as well as stereotypes associated with a particular national origin or ethnic group. She said this form of discrimination can be seen in discriminatory recruitment practices and occupational segregation by ethnicity or national origin   For example, a restaurant may employ an Hispanic worker as a dishwasher but not as a server because of his or her accent.

Smith also said some unscrupulous American employers are using labor recruiters from the source country that are notorious for discrimination to handle the hiring of foreign-born workers, while arguing that they are not responsible for labor violations committed by their recruiters. In this way, Smith writes, the employer can shift labor costs and liabilities to the smaller entity, which is often an undercapitalized firm that cannot satisfy potential judgments against it

Smith also writes that harassment and threats of deportation are “almost standard operating procedure” in some guestworker-dominated work sites

NELP estimates that eight million undocumented workers form 5.2 percent of the U.S. labor force.

Perhaps it is a sign of the times but no union representative is slated to testify before the EEOC at the hearing.

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