Current through 2024-38, September 18, 2024
In addition to any other unlawful practice on the basis of
ancestry or national origin prohibited by this chapter or the Act:
1.
Definition of ancestral or national
origin discrimination
Unlawful employment discrimination includes discrimination
because of ancestry or national origin. The Commission defines national origin
discrimination broadly as including, but not limited to, the denial of equal
employment opportunity because of an individual's, or their ancestor's, place
of origin; or because an individual has the physical, cultural or linguistic
characteristics of a national origin group. For example, denial of equal
employment opportunity based on such factors as (a) marriage to or association
with persons of a national origin group; (b) membership in, or association with
an organization identified with or seeking to promote the interests of national
origin groups; (c) attendance or participation in schools, churches, temples or
mosques, generally used by persons of a national origin group; and (d) because
an individual's name or spouse's name is associated with a national origin
group may form the basis of a claim for national origin discrimination.
2.
Citizenship
requirements
In those circumstances where citizenship requirements have
the purpose or effect of discriminating against an individual on the basis of
national origin, they are unlawful employment discrimination prohibited by this
chapter and the Act.
3.
Selection procedures
A. In
investigating an employer's selection procedures (including those identified
below) for adverse impact on the basis of national origin, the Commission will
apply the Uniform Guidelines on Employee Selection Procedures
("UGESP"), 29 C.F.R. part 1607 . Employers and other users of selection
procedures should refer to the UGESP for guidance on matters, such as adverse
impact, validation and recordkeeping requirements for national origin
groups.
B. The Commission has found
that the use of the following selection procedures may be discriminatory on the
basis of national origin. Therefore, it will carefully investigate charges
involving these selection procedures for both disparate treatment and adverse
impact on the basis of national origin.
(1)
Fluency-in-English requirements, such as denying employment opportunities
because of an individual's foreign accent, or inability to communicate well in
English.
(2) Training or education
requirements which deny employment opportunities to an individual because of
their foreign training or education, or which require an individual to be
foreign trained or educated.
4.
Speak-English-only rules
A.
When applied at all times. A
rule requiring employees to speak only English at all times in the workplace is
a burdensome term and condition of employment. The primary language of an
individual is often an essential national origin characteristic. Prohibiting
employees at all times, in the workplace, from speaking their primary language
or the language they speak most comfortably, disadvantages an individual's
employment opportunities on the basis of national origin. It may also create an
atmosphere of inferiority, isolation and intimidation based on national origin
which could result in a discriminatory working environment. Therefore, the
Commission will presume that such a rule is unlawful employment discrimination
and will closely scrutinize it.
B.
When applied only at certain times. An employer may have a rule
requiring that employees speak only in English at certain times where the
employer can show that the rule is work-related and justified by business
necessity. Any such rule may nonetheless have a discriminatory impact on the
basis of national origin, in which case the employee may prevail by showing
that an alternative, less discriminatory means of achieving the business
necessity was available to the employer.
C.
Notice of the rule. It is
common for individuals whose primary language is not English to inadvertently
change from speaking English to speaking their primary language. Therefore, if
an employer believes it has a business necessity for a speak-English-only rule
at certain times, the employer should inform its employees of the general
circumstances when speaking only in English is required and of the consequences
of violating the rule. If an employer fails to effectively notify its employees
of the rule and makes an adverse employment decision against an individual
based on a violation of the rule, the Commission will consider the employer's
application of the rule as evidence of unlawful employment discrimination on
the basis of national origin.
