Perceived National Origin Discrimination Can be Pitfall for Employers
By Ruder Ware Alumni
December 9, 2016
I have always struggled with the notion of “perceived” discrimination and whether an employer has actually discriminated against an employee because they perceive the employee to be disabled or of a different national origin or something else. The EEOC recently issued updated Enforcement Guidance on national origin discrimination and concluded that national origin discrimination includes discrimination “because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” The Guidance went on to conclude that an employer is in violation of Title VII if the employer’s actions “have the purpose or effect of discriminating against persons because of their real or perceived national origin.” See www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.
The Wisconsin Fair Employment Act has the same provisions and strongly suggests that an employer can be accused of discrimination if they perceive an individual employee to be of a certain national origin. As we look at the variety of persons and actions in the workplace, this can become a very dangerous area of concern. Managers can perceive an individual to be of a certain race or national origin and then allegations can be made that the employer discriminated against that individual because of the perceived national origin status. As we strive to avoid any knowledge or background regarding an individual’s national origin, managers are left with little guidance or understanding of a particular national origin of an employee and may make assumptions that should not be made.
I am not advocating that we ask each of our employees what their national origin is, but I am suggesting that managers receive training on how to avoid perceiving an individual to be of a particular race or national origin and employers should reaffirm their position that national origin discrimination is not part of the fabric of the company.
There are cases in the federal court that limit the employer’s liability for things such as perceived discrimination based upon national origin. I am not sure these cases will help a Wisconsin employer based upon the language of the Wisconsin Fair Employment Act. The challenge for employers is to make sure that employment decisions are made based upon the facts and not based upon a perception of an individual’s national origin or even a perceived disabling condition. Employers should make sure to train their managers to understand and avoid making decisions based upon perceptions rather than facts.
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