PART 1606—GUIDELINES ON DISCRIMINATION BECAUSE OF NATIONAL ORIGIN Authority: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. Source: 45 FR 85635, Dec. 29, 1980, unless otherwise noted. § 1606.1 Definition of national origin discrimination. 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 his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. The Commission will examine with particular concern charges alleging that individuals within the jurisdiction of the Commission have been denied equal employment opportunity for reasons which are grounded in national origin considerations, such 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. In examining these charges for unlawful national origin discrimination, the Commission will apply general title VII principles, such as disparate treatment and adverse impact. § 1606.2 Scope of title VII protection. Title VII of the Civil Rights Act of 1964, as amended, protects individuals against employment discrimination on the basis of race, color, religion, sex or national origin. The title VII principles of disparate treatment and adverse impact equally apply to national origin discrimination. These Guidelines apply to all entities covered by title VII (collectively referred to as “employer”). § 1606.3 The national security exception. It is not an unlawful employment practice to deny employment opportunities to any individual who does not fulfill the national security requirements stated in section 703(g) of title VII. 1 1 § 1606.4 The bona fide occupational qualification exception. The exception stated in section 703(e) of title VII, that national origin may be a bona fide occupational qualification, shall be strictly construed. § 1606.5 Citizenship requirements. (a) In those circumstances, where citizenship requirements have the purpose or effect of discriminating against an individual on the basis of national origin, they are prohibited by title VII. 2 2 Espinoza Farah Mfg. Co., Inc., (b) Some State laws prohibit the employment of non-citizens. Where these laws are in conflict with title VII, they are superseded under section 708 of the title. § 1606.6 Selection procedures. (a)(1) 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 (2) Because height or weight requirements tend to exclude individuals on the basis of national origin, 3 4 3 Davis County of Los Angeles, Dothard Rawlinson, 4 Uniform Guidelines on Employee Selection Procedures, (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. However, the Commission does not consider these to be exceptions to the “bottom line” concept: (1) Fluency-in-English requirements, such as denying employment opportunities because of an individual's foreign accent, 5 6 5 6 (2) Training or education requirements which deny employment opportunities to an individual because of his or her foreign training or education, or which require an individual to be foreign trained or educated. § 1606.7 Speak-English-only rules. (a) When applied at all times. 7 7 (b) When applied only at certain times. (c) Notice of the rule. § 1606.8 Harassment. (a) The Commission has consistently held that harassment on the basis of national origin is a violation of title VII. An employer has an affirmative duty to maintain a working environment free of harassment on the basis of national origin. 8 8 Guidelines on Discrimination Because of Sex, (b) Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct: (1) Has the purpose or effect of creating an intimidating, hostile or offensive working environment; (2) Has the purpose or effect of unreasonably interfering with an individual's work performance; or (3) Otherwise adversely affects an individual's employment opportunities. (c) [Reserved] (d) With respect to conduct between fellow employees, an employer is responsible for acts of harassment in the workplace on the basis of national origin, where the employer, its agents or supervisory employees, knows or should have known of the conduct, unless the employer can show that it took immediate and appropriate corrective action. (e) An employer may also be responsible for the acts of non-employees with respect to harassment of employees in the workplace on the basis of national origin, where the employer, its agents or supervisory employees, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees. Appendix A to § 1606.8—Background Information The Commission has rescinded § 1606.8(c) of the Guidelines on National Origin Harassment, which set forth the standard of employer liability for harassment by supervisors. That section is no longer valid, in light of the Supreme Court decisions in Burlington Industries, Inc. Ellerth, Faragher City of Boca Raton, www.eeoc.gov., [45 FR 85635, Dec. 29, 1980, as amended at 64 FR 58334, Oct. 29, 1999]