There were some good signs in a public meeting in Washington yesterday (Nov. 13) that the U.S. Equal Employment Opportunity Commission may be willing to consider updating its guidance on national-origin discrimination issued after the 9/11 attacks.
Such is the gist of a blog post on Seyfarth Shaw’s Workplace Class Action Blog by Paul Kehoe, senior counsel in the employment law firm’s Washington office, who attended the meeting — aimed at hearing testimony about the challenges in today’s workplace related to national-origin discrimination, including English-only policies.
In a separate note about the meeting, Kehoe says the testimony “indicated some level of support for updated guidance from the EEOC.” He adds that, while it’s unclear whether the agency will actually revise the guidance, “an initial step to updating [a] guidance is to hold a public hearing.”
In his blog post, Kehoe describes some of testimony on both employer and employee sides:
Employer representatives suggested clarifying certain aspects of the current EEOC guidance and providing best practices, while fully considering employers’ legitimate interests and Title VII’s statutory intent. Advocates for workers suggested providing additional guidance narrowing the permissible instances where English-only policies would be appropriate and addressing ‘listener’or ‘implicit’ bias as it relates to customer preference and other issues.”
He also explains what’s at stake:
Currently, the EEOC’s guidance recognizes that claims may be brought under both disparate-treatment and disparate-impact theories of discrimination. Of course, in a disparate-treatment claim, the plaintiff would bear the ultimate burden of establishing pretext, while in a disparate-impact claim, the ultimate burden would fall on the employer to establish that the policy at issue was job-related and consistent with business necessity. Updated guidance would likely provide more context for the regulated community, but may ultimately make it more difficult for employers to comply with the EEOC’s view of Title VII.”
And in signing off, he provides some worthy employer caution:
Will the EEOC choose to update guidance in this area, which by Commission standards was recently completed in 2002, when there are other more pressing guidance documents to update? Only time will tell, but employers should review their language-related policies to determine whether they are in compliance with Title VII or if the policy needs additional consideration.”