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National Origin Discrimination
Amidst a workforce characterized by rapidly changing demographics, employers and employees are faced with many challenges, including providing a workplace free from harassment and discrimination. Based on the 2010 Census, 40 million foreign-born individuals live in the United States, and account for 12.9% of the total population. A decade ago, those figures were 31.1 million and 11.1% respectively, and in 1990, 19.8 million and 7.9% respectively. In addition, almost 20.7% of the population over 5 years old speaks a language other than English at home, and of these, 62% speak Spanish or Spanish Creole. A decade ago, those numbers were 17.9% and 59.8%, respectively.
These demographic shifts play out across the country in all aspects of life, but in particular, in the workplace. Recent data published by the Equal Employment Opportunity Commission (EEOC) indicates that filings alleging national origin discrimination have increased from 8,327 in fiscal year 2005 to 10,883 in fiscal year 2012, though as a total percentage of claims filed, they have remained relatively stable between 11%-12% over that period.
In part based on these demographic changes and increased charge filings, the EEOC included “Protecting Immigrant, Migrant and Other Vulnerable Workers” as a priority in its December 2012 Strategic Enforcement Plan. In addition to filing litigation alleging national origin discrimination, the EEOC held a public meeting on Nov. 13, 2013 to hear testimony regarding whether, and how, it should update its Compliance Manual chapter, which discusses national origin discrimination. The EEOC last updated this section in December 2002 following the 9/11 attacks. The meeting largely focused on language-related issues, including English-only policies, fluency requirements, and accent-related claims. A secondary emphasis focused on national origin harassment claims. The Commissioners heard testimony from advocates and management representatives alike to discuss the many challenges in today's workplace related to national origin discrimination. While it is unclear whether the EEOC will revise its national origin guidance, generally speaking, an initial step for such changes is to hold a public meeting to solicit views from the regulated community.
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