^[1] 42 U.S.C. § 2000e et seq. Title VII, which the EEOC enforces, covers private sector and state and local government entities that have 15 or more employees, federal government employers, employment agencies, and labor organizations. In this document, the term "employer" is used to generically reference all of these covered entities.

^[2] Individuals are covered under Title VII regardless of immigration status or authorization to work. See 42 U.S.C. §§ 2000e(f), 2000e-2; EEOC v. Tortilleria "La Mejor," 758 F. Supp. 585, 593-94 (E.D. Cal. 1991)("Congress did not intend that the [Immigration Reform and Control Act (IRCA)] amend or repeal any of the previously legislated protections of the federal labor and employment laws accorded to aliens, documented or undocumented, including the protections of Title VII"). In presenting IRCA, which, in part, prohibits employment of undocumented workers, a congressional committee confirmed that "[T]he committee does not intend that any provision of this Act would limit the powers of State or Federal labor standards agencies such as the . . . Equal Employment Opportunity Commission. . . to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies." H.R.Rep. No. 99-682(II), at 8-9 (1986), as reprinted in 1986 U.S.C.C.A.N. 5757, 5758. See also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) ("Tit[le] VII protects all individuals from unlawful discrimination, whether or not they are citizens of the United States."). Where a worker is undocumented, issues may arise regarding the availability of remedies, but those issues are case-specific. See EEOC v. Maritime Autowash, Inc., No. 15-1947, 2016 WL 1622290, at *5 (4th Cir. Apr. 25, 2016) (noting that questions related to relief in cases involving undocumented workers are "nuanced" and "less categorical" than defendant suggested and discussing, inter alia, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), where the Court reversed the NLRB's award of backpay to an undocumented worker for work not performed, while also affirming the applicability of the National Labor Relations Act to undocumented workers).

^[3] Employment in the United States includes employment in any territory or possession of the United States, including Puerto Rico, Guam, the Northern Mariana Islands, American Samoa, and the U.S. Virgin Islands. See EEOC,Compliance Manual Section 2: Threshold Issues, § 2-III A.4 n.82, http://www.eeoc.gov/policy/docs/threshold.html (last modified Aug. 6, 2009) [hereinafter EEOC Threshold Issues Compliance Manual]. References to the "United States" in this document also include United States territories.

^[4] For more information oncoverage of U.S. citizens in other countries, refer to Section VII.B.

^[5] Title VII's protection against national origin discrimination covers a broad definition of "national origin" and therefore is not limited to discrimination based on races or ethnicities listed in the EEOC's Employer Information Report EEO-1, or other EEOC surveys. See 29 C.F.R. § 1606.1 ("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."). See also EEOC, Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern, http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employers.cfm (last visited Oct. 19, 2016); EEOC, Questions and Answers for Employees: Workplace Rights of Employees Who Are, or Are Perceived to Be, Muslim or Middle Eastern, http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employees.cfm (last visited Oct. 19, 2016).

^[6] See U.S. Census Bureau, The Foreign-Born Population in the United States: 2010, American Community Survey Reports, 17-18 (May 2012), https://www2.census.gov/library/publications/2012/acs/acs-19.pdf.

^[7] See U.S. Census Bureau, The Newly Arrived Foreign-Born Population of the United States: 2010, 2, Figure 1: Foreign-Born Population by Period of Entry and World Region of Birth: 2010 (Nov. 2011), https://www2.census.gov/library/publications/2011/acs/acsbr10-16.pdf(reporting that of the foreign-born population that arrived in the United States starting in 2008, 40.3% were from Asia and 31.3% were from Central and South America).

^[8] See U.S. Census Bureau, The Foreign-Born from Asia: 2011, American Community Survey Briefs, 1 (Oct.2012), https://www2.census.gov/library/publications/2012/acs/acsbr11-06.pdf("The foreign-born population from Asia increased from 8.2 million in 2000 to 11.6 million in 2011."); Press Release, U.S. Census Bureau, Asians Fastest-Growing Race or Ethnic Group in 2012, Census Bureau Reports (June 13, 2013), http://www.census.gov/newsroom/press-releases/2013/cb13-112.html?cssp=SERP("Asians were the nation's fastest-growing race or ethnic group in 2012 . . . More than 60 percent of this growth in the Asian population came from international migration."); U.S. Census Bureau, The Hispanic Population: 2010, 2 (May 2011), https://www.census.gov/content/dam/Census/library/publications/2011/dec/c2010br-04.pdf ("The Hispanic population increased by 15.2 million between 2000 and 2010, accounting for over half of the 27.3 million increase in the total population of the United States.").

^[9] See U.S. Census Bureau, Race and Hispanic Origin of the Foreign-Born Population in the United States: 2007, American Community Survey Reports, 7 (Jan. 2010), http://www.census.gov/prod/2010pubs/acs-11.pdf(reporting that foreign-born Blacks accounted for 8 percent of the total Black population in 2007; of this 8 percent, 54 percent were born in countries in the Caribbean, such as Jamaica (19%), Haiti (17%), and Trinidad and Tobago (6%), while 34 percent were born in countries in Africa, for example, Nigeria (6%), Ethiopia (4%), and Ghana (3%)).

^[10] These occupations include healthcare (e.g., nursing aides, orderlies, and attendants), home health and personal care, postsecondary teaching, food preparation and food service, heavy tractor trailer truck driving, freight stock and materials moving, and childcare. Audrey Singer, Immigrant Workers in the U.S. Labor Force¸ The Brookings Inst., 18 (Mar. 15, 2012), https://www.brookings.edu/wp-content/uploads/2016/06/0315_immigrant_workers_singer.pdf.

^[11] See U.S. Census Bureau, The Foreign-Born Population in the United States: 2010, American Community Survey Reports, 18 (May 2012), https://www.census.gov/library/publications/2012/acs/acs-19.html. In 2015, there were 25.3million immigrant workers in the U.S. labor force, accounting for 16.7percent of all U.S. workers. Bureau of Labor Statistics, U.S. Dep't of Labor, Economic News Release,Foreign-Born Workers: Labor Force Characteristics - 2015, 1 (May 19, 2016), http://www.bls.gov/news.release/forbrn.nr0.htm.

^[12] For example, while one in six Americans is of Hispanic or Latino origin, one in five children under the age of 18 is of Hispanic or Latino origin. See U.S. Census Bureau, The Hispanic Population: 2010, 2010 Census Briefs, 2 (May 2011), https://www.census.gov/content/dam/Census/library/publications/2011/dec/c2010br-04.pdf; Richard Fry & Jeffrey S. Passel, Latino Children: A Majority Are U.S.-Born Offspring of Immigrants, Pew Research Ctr., 1 (May 28, 2009), http://www.pewhispanic.org/2009/05/28/latino-children-a-majority-are-us-born-offspring-of-immigrants/.

^[13] In FY 2015, 9,438 employment discrimination charges were filed with the Commission alleging national origin discrimination against private or state and local employers, representing 10.6% of charges filed with the EEOC in FY 2015.

^[14] "Promising practices" are examples of actions or programs that may promote compliance with Title VII. Promisingpractices comply with the law, promote equal employment opportunity, show management commitment and accountability, and have produced positive results.

^[15] 29 C.F.R. § 1606.1 (defining national origin discrimination "broadly"). National origin discrimination includes discrimination because an individual is "non-American" or "foreign born." See generally Zuckerstein v. Argonne Nat'l Lab., 663 F. Supp. 569, 576-77 (N.D. Ill. 1987) (finding that Title VII permits claim of discrimination against "foreign born" employees where charging parties were of Chinese and "German-Jewish-Czechoslovakian" origin).

^[16] 42 U.S.C. § 2000e-2; 29 C.F.R. § 1606.2. In addition, Title VI of the Civil Rights Act of 1964 prohibits an entity that receives federal financial assistance from discriminating based on national origin in employment "where a primary objective of the Federal financial assistance is to provide employment." 42 U.S.C. § 2000d-3. Title VI's prohibition on national origin discrimination has been interpreted to include discrimination based on language and to require a recipient of federal financial assistance to take reasonable steps to ensure that individuals with limited English proficiency have meaningful access to the recipient's programs, services, and activities. See, e.g., Lau v. Nichols, 414 U.S. 563, 567-68 (1974); Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1116-17 (9th Cir. 2009); and Title VI implementing regulations, 28 C.F.R. § 42.405(d)(1). A federal agency that receives a complaint of employment discrimination against an entity that is covered by both Title VI and Title VII may refer that complaint to the EEOC. See 29 C.F.R. §§ 1691.1-1691.13 (EEOC), 28 C.F.R. §§ 42.601-42.613 (DOJ).

^[17] See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (". . . in the related context of racial discrimination in the workplace, we have rejected any conclusive presumption that an employer will not discriminate against members of his own race.").

^[18] 29 C.F.R. § 1606.1. See also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973) (stating that "[t]he term 'national origin' [in Title VII] on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came").

^[19] See, e.g., Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 673 (9th Cir. 1988) (with reference to Serbia and Yugoslavia in 1988, stating that "Title VII cannot be read to limit 'countries' to those with modern boundaries, or to require their existence for a certain time length before it will prohibit discrimination").

^[20] National origin discrimination includes discrimination against American workers in favor of foreign workers. See, e.g., Fortino v. Quasar Co., 950 F.2d 389, 392 (7th Cir. 1991) (stating that Title VII protects Americans from discrimination in favor of foreign workers); Fulford v. Alligator River Farms, LLC, 858 F. Supp. 2d 550, 557-60 (E.D.N.C. 2012) (finding that the plaintiffs adequately alleged disparate treatment and hostile work environment claims based on their national origin, American, where the defendant treated them differently, and less favorably, than workers from Mexico); Thomas v. Rohner-Gehrig & Co., 582 F. Supp. 669, 674 (N.D. Ill. 1984) (holding that "a plaintiff discriminated against because of birth in the United States has a Title VII cause of action"). In EEOC v. Hamilton Growers, Inc., No. 7:11-cv-00134-HL (M.D. Ga. filed Oct. 4, 2011), the EEOC alleged that African American workers were regularly subjected to different and less favorable terms and conditions of employment as compared to workers from Mexico. In December 2012, Hamilton Growers, Inc. agreed to pay $500,000 to the workers to settle the case. See Press Release, EEOC, Hamilton Growers to Pay $500,000 to Settle EEOC Race/National Origin Discrimination Lawsuit, (Dec. 13, 2012), http://www.eeoc.gov/eeoc/newsroom/release/12-13-12.cfm.

^[21] Roach v. Dresser Indus. Valve & Instrument Div., 494 F. Supp. 215, 216-18 (W.D. La. 1980) (recognizing that Title VII prohibits an employer from discriminating against an individual because he is Acadian or Cajun even though Acadia "is not and never was an independent nation" but was a former French colony in North America; in the late 1700s, many Acadians moved from Nova Scotia to Louisiana). Cf. Vitalis v. Sun Constructors, Inc., 481 F. App'x 718, 721 (3d Cir. 2012) (citation omitted) (finding that, although "courts have been willing to expand the concept of 'national origin' to include claims from persons . . . based upon the unique historical, political and/or social circumstances of a given region," plaintiff failed to present sufficient evidence that all of the "local residents" of St. Croix share a unique historical, political, and/or social circumstance).

^[22] See, e.g., 29 C.F.R. § 1606.1 ("The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity . . . because an individual has the physical, cultural or linguistic characteristics of a national origin group."); St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring) (stating "that the line between discrimination based on 'ancestry or ethnic characteristics,' . . . and discrimination based on 'place or nation of . . . origin,' . . . is not a bright one" because "[o]ften . . . the two are identical as a factual matter"; thus, "national origin claims have been treated as ancestry or ethnicity claims in some circumstances")(citing 29 C.F.R. § 1606.1); Cortezano v. Salin Bank & Trust Co., 680 F.3d 936, 940 (7th Cir. 2012) (stating that "national origin discrimination as defined in Title VII encompasses discrimination based on one's ancestry"); Bennun v. Rutgers State Univ., 941 F.2d 154, 173 (3d Cir. 1991) (stating that birth in a foreign country where another culture predominates, immersion in that country's way of life, and speaking the country's native language in one's home, support the conclusion that an individual is part of a national origin group); Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1284 (N.D. Okla. 2006) (concluding in a case filed by EEOC and workers, who wererecruited from India, that the workers established disparate treatment discrimination claims based on race and national origin where the defendants "made numerous discriminatory comments about their ancestry, ethnic background, culture, and country"); Kanaji v. Children's Hosp. of Phila., 276 F. Supp. 2d 399, 401-02 (E.D. Pa. 2003) (stating that the term "national origin . . . is better understood by reference to certain traits or characteristics that can be linked to one's place of origin, as opposed to a specific country or nation"); see also Anne-Sophie Deprez-Sims & Scott B. Morris, Accents in the Workplace: Their Effects During a Job Interview, 45 Int'l J. of Psychol. 417, 418 (2010) ("Ethnicity and country of origin are overlapping but distinct concepts. A country refers to a geographic region . . . [while] [e]thnicity refers to a social group with a shared heritage or culture. While some countries have a strong ethnic identity, others comprise multiple ethnic groups.").

^[23] See, e.g., Salas v. Wis. Dep't of Corr., 493 F.3d 913, 923 (7th Cir. 2007) (finding that Hispanics would qualify as a national origin group); EEOC v. WC&M Enters., 496 F.3d 393, 401-02 (5th Cir. 2007) (post-September 11 national origin harassment of a Muslim car salesman from India included taunting about being an "Arab"); Janko v. Ill. State Toll Highway Auth., 704 F. Supp. 1531, 1532 (N.D. Ill. 1989) (finding that discrimination based on an employee's status as a Roma constitutes national origin discrimination under Title VII, which prohibits discrimination based on "ethnic distinctions commonly recognized at the time of the discrimination").

^[24] The following terms are used interchangeably in this document due to their frequent and accepted vernacular usage: "Black" and "African American"; "Asian" and "Asian American"; and "Latino" and "Hispanic."

^[25] If the alleged employment discrimination is based on traits linked to national origin, then the alleged discriminator need not know the particular national origin group to which the charging party belongs. It is enough to show that the victim was discriminated against "because of his or her foreign accent, appearance or physical characteristics." 45 Fed. Reg. 85,632, 85,633 (Dec. 29, 1980) (EEOC's preamble to "Guidelines on Discrimination Because of National Origin"); see WC&M Enters., 496 F.3d at 401 (same); Zayadeen v. Abbott Molecular, Inc., No. 10 C 4621, 2013 WL 361726, at *8-13(N.D. Ill. Jan. 30, 2013) (finding that a reasonable jury could conclude that comments from a supervisor and coworkers making fun of Jordanian employee's accent, native language, food, and physical appearance constituted harassment based on race and national origin and that "the same discriminatory impulses" motivated the supervisor to terminate his employment).

^[26] See Albert-Aluya v. Burlington Coat Factory Warehouse Corp., 470 F. App'x 847, 851 (11th Cir. 2012) (stating that a reasonable jury could find that the plaintiff was wrongfully terminated based on her national origin; managers told her that she was being fired because of her "thick African accent" and made other comments regarding her accent and ethnicity); Kanaji, 276 F. Supp. 2d at 400-04 (finding that employee properly alleged national origin discrimination based on being "of direct African descent" where employer treated him differently from employees who were not of direct African descent and made critical comments about the employee's ethnic African clothing and language skills). Refer to Section V.A for more information on accent discrimination and Section III.B.1 for more information on discriminatory "look" policies.

^[27] See, e.g., WC&M Enters., 496 F.3d at 401-02 (finding that the EEOC presented sufficient evidence to support its national origin harassment claim where coworkers repeatedly referred to employee of Indian descent as "Taliban" or "Arab" and stated that "[t]his is America . . . not the Islamic country where you came from," even though the harassing comments did not accurately describe his actual country of origin); Arsham v. Mayor & City Council of Balt., No. JKB-14-2158, 2015 WL 590490, at *4-8 (D. Md. Feb. 11, 2015) (finding that employee of Persian descent stated a valid claim of national origin discrimination and harassment even though her employer mistakenly believed her to be Parsee); Zayadeen, 2013 WL 361726, at *8 (finding that a reasonable jury could conclude that a Jordanian employee was harassed based on his national origin even though the alleged harassers "did not understand or intentionally fuzzed the distinction between Jordan and Kazakhstan when engaging in the harassment").

^[28] See, e.g., Roule v. Petraeus, No. C 10-04632 CW, 2011 WL 5914025, at *4 (N.D. Cal. Nov. 28, 2011) (denying the employer's motion to dismiss plaintiff's complaint alleging discrimination based on the national origin of his wife (a Taiwanese national of Asian ethnicity); the court noted that the EEOC, and other federal courts, have consistently concluded that an employer who takes adverse action against an employee because of interracial association violates Title VII); Chacon v. Ochs, 780 F. Supp. 680, 682 (C.D. Cal. 1991) (denying the employer's motion to dismiss plaintiff's Title VII complaint where she alleged that her coworkers made denigrating remarks about Hispanics, knowing that her husband and children were Hispanic).

^[29] See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 92 (1973) (stating that Title VII "prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin"). Discrimination based on citizenship status may also have the purpose or effect of discriminating based on other protected bases, including race, color, or religion. Although Title VII applies regardless of immigration status or authorization to work, employers are prohibited from hiring individuals who are not authorized to work. See 8 U.S.C. § 1324a. However, the anti-discrimination provision of the Immigration and Nationality Act (INA), enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the Department of Justice's Civil Rights Division, expressly prohibitsemployers with four or more employees from discriminating based on citizenship or immigration status with respect to hiring, firing, and recruitment or referral for a fee. See 8 U.S.C. § 1324b(a)(1). This provision also prohibits employers with at least four employees from discriminating on the basis of national origin in hiring, firing, and recruitment or referral for a fee if those employers are not within Title VII's jurisdiction. 8 U.S.C. § 1324b(a)(2)(B). In cases where there may be overlapping jurisdiction between the EEOC (Title VII) and OSC (INA), EEOC investigators should consult the 1997 Memorandum of Understanding Between the Equal Employment Opportunity Commission and The Office of Special Counsel for Immigration Related Unfair Employment Practices https://www.eeoc.gov/mou/memorandum-understanding-between-equal-employment-opportunity-commission-and-office-special (last modified July 6, 2000) [hereinafter EEOC/OSC Memorandum of Understanding]. EEOC investigators should direct any questions concerning the EEOC/OSC Memorandum of Understanding to the Office of Legal Counsel, Coordination Division. Additional information about employee rights under the laws enforced by the EEOC and OSC is contained in an EEOC/OSC joint publication that is available in 17 languages on the EEOC and OSC websites. See EEOC and OSC, Do you Know Where to Go, https://www.eeoc.gov/laws/guidance/osc-eeoc-flyer-do-you-know-where-go (last visited Oct. 19, 2016) and http://www.justice.gov/crt/worker-information (last visited Oct. 19, 2016).

^[30] Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1120 (9th Cir. 1998) (finding that "differential employment treatment based on tribal affiliation is actionable as 'national origin' discrimination under Title VII").

^[31] Employment discrimination involving more than one protected basis is a problem particularly in the area of national origin. See Written Testimony of Lucila Rosas, EEOC Lead Coordinator,

Immigrant Worker Team, Commission Meeting of November 13, 2013, National Origin Discrimination in Today's Workplace, http://www.eeoc.gov/eeoc/meetings/11-13-13/rosas.cfm(last visited Oct. 19, 2016). The EEOC will "examine with particular concern" charges alleging discrimination "grounded in national origin considerations, such as . . . membership in, or association with an organization identified with or seeking to promote the interests of national origin groups," and "attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group." 29 C.F.R. § 1606.1.

^[32] See, e.g., Reyes v. Pharma Chemie, Inc., 890 F. Supp. 2d 1147, 1158 (D. Neb. 2012) (stating that "[t]he line dividing the concepts of 'race' and 'national origin' is fuzzy at best, and in some contexts, national origin discrimination is so closely related to racial discrimination as to be indistinguishable").

^[33] See, e.g., EEOC v. WC&M Enters., 496 F.3d 393, 400-01 (5th Cir. 2007) (ruling that a jury could reasonably conclude that post-September 11 harassment against an Indian employee because he was perceived to be Arab and was, in fact, Muslim, was severe or pervasive and motivated by his national origin and religion).

An important difference between national origin and religious discrimination involves reasonable accommodation. Title VII requires reasonable accommodation of sincerely held religious practices barring undue hardship, but it does not require accommodation of national origin traditions or practices. See 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b). For a detailed discussion of religious accommodation and undue hardship, refer to 29 C.F.R. § 1605.2; EEOC, Compliance Manual Section 12: Religious Discrimination (July 22, 2008), http://www.eeoc.gov/policy/docs/religion.html; EEOC, Religious Garb and Grooming in the Workplace: Rights and Responsibilities, http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm (last visited Oct. 19, 2016).

^[34] EEOC investigators should identify this conduct as discrimination based on race and national origin. See St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (recognizing claims for racial discrimination under 42 U.S.C. § 1981 for individuals of Arab descent).

^[35] See Jeffers v. Thompson, 264 F. Supp. 2d 314, 326 (D. Md. 2003); see also Lam v. Univ. of Haw., 40 F.3d 1551, 1562 ("[W]here two bases for discrimination exist, they cannot be neatly reduced to distinct components.").

^[36] Lam v. Univ. of Haw., 40 F.3d at 1562 ("[Asian women] may be targeted for discrimination 'even in the absence of discrimination against [Asian] men or white women.'") (quoting Jefferies, 615 F.2d at 1032)). Courts also have addressed intersectional discrimination against African American women and against African American men. See, e.g., Shazor v. Prof'l Transit Mgmt., 744 F.3d948,958 (6th Cir. 2014) ("If a female African American plaintiff . . . establishes a sufficient foundation of discrimination, a defendant cannot undermine her prima facie case by showing that [W]hite women and African American men received the same treatment."); Jefferies, 615 F.2d at 1032-34 ("we hold that when a Title VII plaintiff alleges that an employer discriminates against [B]lack females, the fact that [B]lack males and [W]hite females are not subject to discrimination is irrelevant"); Kimble v. Wis. Dep't of Workforce Dev., 690 F. Supp. 2d 765, 770-71 (E.D. Wis. 2010) (concluding that plaintiff established the first element of a prima facie case under Title VII by alleging that he was discriminated against based on a combination of race and gender, i.e., because he is an African American male).

^[37] See Lam v. Univ. of Haw., 40 F.3d at 1562.

^[38] See, e.g., 18 U.S.C. § 1581-90 (criminalizing the holding, transporting, or selling of persons into peonage, slavery, or indentured servitude, as well as obtaining labor by force or physical restraint). The Trafficking Victims Protection Act ("TVPA") defines "human trafficking" or "severe forms of trafficking in persons" as "(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age;" or "(B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." 22 U.S.C. § 7102(9); see alsoU.S. Dep't of State, Trafficking in Persons Report, 9 (June 2016), https://2009-2017.state.gov/j/tip/rls/tiprpt/2016/.

In addition to Title VII remedies, trafficking victims may pursue civil remedies for violations of the TVPA, other federal statutes, and the U.S. Constitution, as well as tort and breach of contract claims. See, e.g., 18 U.S.C. § 1595 (TVPA), 18 U.S.C. §§ 1960-68 (RICO), 29 U.S.C. § 201 et seq.(Fair Labor Standards Act), 29 U.S.C. 1801 et seq.(Migrant & Seasonal Agricultural Protection Act), 42 U.S.C. § 1981, § 1985(3) (Civil Rights Statutes).

^[39] See, e.g. EEOC v. Global Horizons, Inc., 7 F. Supp. 3d 1053 (D. Haw. 2014) (Title VII case finding contractor liable where Thai nationals brought to the U.S. under the H-2A visa program were required to pay high recruitment fees, paid less than non-Thai workers, made to work less desirable jobs, forced to live in deplorable conditions, and subjected to abuses on the farms, including physical violence, humiliation, heavy surveillance, and threats of being shot, deported, or arrested); see also infra note 48; Press Release, EEOC, EEOC Resolves Slavery and Human Trafficking Suit Against Trans Bay Steel For An Estimated $1 Million, (Dec. 8, 2006), http://www.eeoc.gov/eeoc/newsroom/release/archive/12-8-06.html (describing a Title VII case where Thai workers trafficked to California for welding jobs were, among other things, forced to work for long hours without pay in restaurants and held against their will).

^[40] For more information on human trafficking, refer to EEOC, Human Trafficking, http://www.eeoc.gov/eeoc/interagency/trafficking.cfm(last visited Oct. 19,2016).

^[41] This example is based on the facts in Chellen v. John Pickle Co., Inc., 446 F. Supp. 2d 1247 (N.D. Okla. 2006) (awarding $1.29 million to 52 male victims of national origin discrimination and human trafficking who were recruited from India as skilled laborers and then subjected to widespread abuse, intimidation, and exploitation).

^[42] See 42 U.S.C. § 2000e-2(a).

^[43] See 42 U.S.C. § 2000e-2(k). If the employer demonstrates that the policy or practice is job related and consistent with business necessity, the employer will nevertheless be liable if the charging party demonstrates that the employer has refused to adopt a less discriminatory alternative. Id. For more detailed discussion of disparate treatment and disparate impact analysis, see EEOC, Compliance Manual Section 15: Race and Color Discrimination, § 15-V(Apr. 19, 2006), http://www.eeoc.gov/policy/docs/race-color.html#V.

^[44] If current staff is ethnically or racially homogenous, relying largely on word-of-mouth recruitment may operate to exclude applicants of other races or ethnicities and therefore be a prohibited practice. See, e.g., EEOC v. Metal Serv. Co., 892 F.2d 341, 350 (3d Cir. 1990) (finding that EEOC presented sufficient evidence of discrimination when, inter alia, it showed that Black applicants were required to undergo a burdensome application process but White applicants were simply referred by their relatives, friends, or neighbors who currently were part of the all-White workforce); Press Release, EEOC, Lawler Foods to Pay over $1 Million to Settle EEOC Race and National Origin Discrimination Suit, (Apr. 26, 2016), https://www.eeoc.gov/eeoc/newsroom/release/4-26-16.cfm(resolving lawsuit alleging that a bakery engaged in a pattern or practice of intentionally failing to hire African American applicants for jobs and using hiring practices, including word-of-mouth recruiting and advertising a Spanish language preference,that had an adverse impact on non-Hispanic applicants without any business justification); see also Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 529 (6th Cir. 2001) ("[W]ord-of-mouth hiring and similar types of recruiting practices, such as posting job openings in the municipal buildings of a non-diverse city, have a 'tendency to perpetuate the all-[W]hite composition of a work force.'") (citation omitted); United States v. City of Warren, 138 F.3d 1083, 1094 (6th Cir. 1998) (finding that the city's recruitment practices for municipal positions, including only advertising vacant positions within a predominantly White local area and maintaining a pre-application residency requirement, resulted in a disparate impact based on race in violation of Title VII); Thomas v. Wash. Cty. Sch. Bd., 915 F.2d 922, 924-26 (4th Cir. 1990) (finding that the school board violated Title VII's prohibition on race discrimination through a combination of nepotism, word-of-mouth recruiting, and "the general practice of posting notice of vacancies only in the schools," where minority candidates were unlikely to see them).

^[45] See 42 U.S.C. § 2000e(c) (defining "employment agency"); 42 U.S.C. § 2000e-2(b).

^[46] EEOC, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, Questions 1-2, (Dec. 3, 1997) http://www.eeoc.gov/policy/docs/conting.html [hereinafter, EEOC Enforcement Guidance on Contingent Workers] (noting that a staffing firm and/or its client will qualify as an employer if, under factors derived from the common law, it has the right to exercise control over the worker's employment; all factors must be assessed and weighed with no one factor being decisive). See also EEOC Threshold Issues Compliance Manual, supra note 3, at § 2-III B.1.a.iii(b), https://www.eeoc.gov/policy/docs/threshold.html#2-III-B-1-a-iii-(b).

In applying these factors, EEOC has long considered whether an employer has the right to control the terms and conditions of employment (regardless of whether the employer exercises that right), and an employer's indirect control of the terms and conditions of employment as relevant factors in this analysis. See, EEOC Enforcement Guidance on Contingent Workers, supra, at Questions 1-2, http://www.eeoc.gov/policy/docs/conting.html. Example 5 of that enforcement guidance describes a situation where a client that reserves the right to direct staffing firm workers to perform particular tasks, but does not generally exercise that authority, may still be found to be a joint employer. Id. See also, Complainant v. Johnson, EEOC Doc. No. 0120160989, 2016 WL 1622535, at *3 (EEOC Apr. 14, 2016) (finding that "if the [federal] Agency does not wish a staffing firm employee to continue on the contract, it communicates this to the staffing firm Project Manager, who facilitates the termination," and that this arrangement gives the federal agency "de facto power to terminate Complainant, a significant factor weighing in favor of a finding that the Agency jointly employed Complainant").

^[47] EEOC Enforcement Guidance on Contingent Workers, supra note 46, at Question 8, https://www.eeoc.gov/policy/docs/conting.html.

^[48] This example is based on facts similar to those in EEOC v. Global Horizons, Inc., 7 F. Supp. 3d 1053 (D. Haw. 2014) (finding contractor liable for pattern or practice of discriminatory conduct, including harassment and retaliation against hundreds of Thai workers in the U.S., in violation of federal anti-discrimination laws). Global Horizons was subsequently ordered to pay $8.7 million in damages to 82 victims. EEOC v. Global Horizons, Inc., No. 11-00257 LEK-RLP, 2014 WL 7338725, at *31-32 (D. Haw. Dec. 19, 2014). Prior to the court's order, five major farms that used Global Horizons' services agreed to pay $3.6 million to over 500 victims of discrimination and to make extensive policy changes to safeguard the rights of future migrant workers. See Press Release, EEOC, Judge Approves $2.4 Million EEOC Settlement with Four Hawaii Farms for over 500 Thai Farmworkers (Sept. 5, 2014), http://www.eeoc.gov/eeoc/newsroom/release/9-5-14.cfm; Press Release, EEOC, Del Monte Fresh Produce Agrees to Settle EEOC Farmworker National Origin Lawsuit (Nov. 18, 2013), http://www.eeoc.gov/eeoc/newsroom/release/11-18-13a.cfm.

^[49] See, e.g., Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 415 (4th Cir. 2015) (holding that the employment agency and contracting company were joint employers under Title VII where the temporary employment agency "disbursed [the employee's] paychecks, officially terminated her, and handled employee discipline," and the contracting company "ha[d] a substantial degree of control over the circumstances of [the employee's] employment").

^[50] See, e.g., Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1195 (9th Cir. 2003) (holding that a reasonable fact finder could find that the school district improperly denied plaintiff of Lebanese descent a permanent teaching position because of her national origin). See generally EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, § IV "Disparate Treatment Discrimination and Criminal Records" (Apr. 25, 2012), http://eeoc.gov/laws/guidance/arrest_conviction.cfm(discussing Title VII's prohibition on disparate treatment discrimination based on national origin when using criminal records to make hiring decisions).

^[51] See, e.g., Rodriguez v. FedEx Freight E., Inc., 487 F.3d 1001, 1009-10 (6th Cir. 2007) (vacating summary judgment for employer on plaintiff's failure-to-promote claim because manager's disparaging remarks regarding plaintiff's accent and ethnicity constituted direct evidence of national origin discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act); Hasham v. Cal. State Bd. of Equalization, 200 F.3d 1035, 1045-48 (7th Cir. 2000) (upholding jury's finding that a Pakistani American auditor was improperly denied a promotion to a supervisory position based on his national origin); Beckford v. Astrue, No. L-08-2730, 2010 WL 2253654, at *3-4 (D. Md. June 1, 2010) (denying motion to dismiss plaintiff's claim that she was not promoted to a management assistant position due to her national origin because of evidence that employer made remarks concerning her Jamaican accent in relation to her non-selection).

^[52] See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010) ("It is now widely accepted that a company's desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently . . . ."); Bradley v. Pizzaco of Neb., Inc., 7 F.3d 795, 799 (8th Cir. 1993) (holding that customer preference for clean-shaven deliverymen did not establish business necessity for strict no-beard policy); Gerdom v. Cont'l Airlines, Inc., 692 F.2d 602, 609 (9th Cir. 1982) (holding that customer preference for slim female flight attendants did not justify discriminatory policy when weight was unrelated to job performance); see also Akouri v. State of Fla. Dep't. of Transp., 408 F.3d 1338, 1347-48 (11th Cir. 2005) (upholding jury's finding of national origin discrimination where Lebanese-American employee was told that he was passed over for promotion becausetheselecting official believed that White employees were "not going to take orders from [him]").

^[53] See, e.g.,EEOC v. Abercrombie & Fitch Stores, Inc., No. 3:04-cv-04731-SI (N.D. Cal. consent decree filed Apr. 14, 2005). In this case, the EEOC alleged that the retailer violated Title VII by maintaining recruiting and hiring practices that excluded minorities and women,adopting a restrictive marketing image, and other policies, which limited minority and female employment. Abercrombie & Fitch agreed to settle the matter by paying $50 million, developing and implementing nondiscriminatory hiring and recruiting procedures, and ensuring that minorities and women would be promoted into manager-in-training and manager positions without discrimination. Press Release, EEOC Agrees to Landmark Resolution of Discrimination Case Against Abercrombie & Fitch (Nov. 18, 2004), http://www.eeoc.gov/eeoc/newsroom/release/archive/11-18-04.html. Title VII is also violated where an employer's interpretation of its corporate "look policy" results in religious discrimination. See, e.g., EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015). In this case, an applicant was not hired by Abercrombie & Fitch because she wore a headscarf, or "hijab," for religious reasons, which the company did not feel conformed to its "look policy." EEOC filed suit, and the Supreme Court held that Title VII is violated when an employer's motive for not hiring an applicant is to avoid providing a religious accommodation. Id. at 2033-34.

^[54] 42 U.S.C. § 2000e-2(a)(2). See, e.g., Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1284 (N.D. Okla. 2006) (finding in a case filed by EEOC and workers, who were recruited from India, that defendants subjected the workers to "greater testing requirements, lower job classifications, and less desirable job assignments" due to their race and national origin); Colindres v. Quietflex Mfg., No. Civ. A. H-01-4319, H-01-4323, 2004 WL 3690215, at *10-12 (S.D. Tex. Jan. 4, 2006) (denying defendants' summary judgment motion because Latino employees raised disputed fact issues material to determining whether they were eligible for transfer to a higher paying department, which was largely comprised of workers of Vietnamese national origin, and whether they were deterred from applying "because of the [employer's] English language fluency requirement, the segregated workforce, or both"); Ewing v. Coca Cola Bottling Co. of N.Y., Inc., No. 00 CIV. 7020(CM), 2001 WL 767070, at *5-6 (S.D. N.Y. June 25, 2001) (denying defendant's motion to dismiss claim that Black and Hispanic production workers were assigned to work in less desirable jobs than similarly situated White workers, in part, because "the allegations of significant segregation of the production workforce . . . is a sure sign of discrimination"); cf. Johnson v. Zema Sys. Corp., 170 F.3d 734, 743-44 (7th Cir. 1999) (finding that a reasonable jury could infer from the evidence that the employer terminated a former employee, in part, to maintain a racially segregated workforce); Bridgeport Guardians, Inc. v. Delmonte, 553 F. Supp. 601, 610-13 (D. Conn. 1982) (finding that defendants intentionally discriminated against Black and Hispanic police officers by only assigning the officers to specific geographical areas of the city in violation of Title VII). For further discussion of this issue, refer to EEOC, Compliance Manual Vol. 2, Section 618: Segregating, Limiting and Classifying Employees, (BNA) https://www.eeoc.gov/laws/guidance/cm-618-segregating-limiting-and-classifying-employees (last visited Oct. 19, 2016).

^[55] See, e.g., Chaney, 612 F.3d at 912-15 (reversing grant of summary judgment for health care center because a reasonable person would find that the center's policy of honoring the racial preferences of its residents in assigning health-care providers created a racially hostile work environment); Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir. 2007) (holding that a reasonable jury could find that an African American plaintiff was denied a promotion to manage a store in a predominantly White neighborhood because the district manager wanted to "steer" plaintiff to a store in a predominantly Black neighborhood).

^[56] 42 U.S.C. § 2000e-2(g); see also Toy v. Holder, 714 F.3d 881, 886-87 (5th Cir. 2013) (holding that a federal regulation adopted under an Executive Order dealing with access to a secure area provides a Title VII defense under this provision); Ryan v. Reno, 168 F.3d 520, 524 n.3 (D.C. Cir. 1999) (noting that Title VII expressly exempts employment actions "based on security clearance possession").

^[57] See Dep't of Navy v. Egan, 484 U.S. 518, 527-30 (1988) (holding that the Merit Systems Protection Board does not have authority to review thesubstance oftheNavy's security clearance determination in the course of reviewing an adverse action); Bennett v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir. 2005) (holding that the court cannot adjudicate the credibility of plaintiff's pretext argument in a Title VII case where doing so would require the court to evaluate the validity of defendant's security clearance determination); Ryan, 168 F.3d at 523-24 (holding that "an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII").

^[58] See Fonda-Wall v. Dep't of Justice, EEOC Appeal No. 0720060035, 2009 WL 3017634, at *6 (July 28, 2009) ("[T]he Commission retains authority to review whether the grant, denial, or revocation of a security clearance was carried out in a discriminatory manner."). Courts have also found claims involving the discriminatory application of security clearance requirements reviewable, provided that the courts are not required to review the merits of an agency's clearance determination. See,e.g.,Zeinali v. Raytheon Co., 636 F.3d 544, 554-55 (9th Cir. 2011)(deciding that the court may consider plaintiff's claim that employer terminated him for failure to obtain a security clearance while retaining similarly situated employees who lacked security clearances in violation of the California Fair Employment and Housing Act).

^[59] See Romero v. Dep't of Def., 527 F.3d 1324, 1329 (Fed. Cir. 2008) ("[F]ederal employees may challenge an agency's compliance with its regulations governing revocation of security clearances."); Tenenbaum v. Caldera, 45 F. App'x 416, 418 (6th Cir. 2002) (deciding that courts may review cases in which an agency violates its own regulations in making a security clearance determination, but they may not review the substance of the clearance determination).

^[60] See 8 U.S.C. § 1324a(a)(1) (providing that entities or persons must not employ unauthorized aliens in the United States knowing that they are unauthorized to work with respect to such employment).

^[61] E-Verify is an Internet-based system that compares information from an employee's Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. See U.S. Dep't. of Homeland Sec., U.S. Citizenship and Immigration Serv., What is E-Verify, https://www.e-verify.gov/about-e-verify(last visited Oct. 19, 2016).

^[62] 8 C.F.R. § 274a.2(b)(1)(v) (listing documents "acceptable to evidence both identity and employment authorization"). Employers may violate the anti-discrimination provision of the Immigration and Nationality Act by requesting more or different documents, or rejecting valid documents, based on an individual's citizenship status, immigration status, or national origin. See 8 U.S.C. § 1324b(a)(6). For more information, refer to U.S. Dep't of Justice, Civil Rights Div. Office of Special Counsel for Immigration-Related Unfair Emp't Practices, http://www.justice.gov/crt/about/osc/(last visited Oct. 19, 2016).

^[63] See 8 U.S.C. § 1324a(b)(1)(C)(i) (a "social security account number card" is one of several documents that provides evidence of employment authorization and, in combination with proof of identity, permits an employee to be hired under the Immigration and Nationality Act).

^[64] See U.S. Dep't. of Homeland Sec., U.S. Citizenship and Immigration Serv., U.S. Citizenship and Immigration Services E-Verify Questions and Answers, https://www.e-verify.gov/faq/my-employee-applied-for-a-social-security-number-ssn-but-has-not-yet-received-it-what-should-i(last visited Oct. 19, 2016) (explaining that an employer must allow a newly hired employee to continue to work if she has applied for but has not yet received his or her Social Security number (SSN)); see alsoSoc. Sec.Admin., Employer Responsibilities When Hiring Foreign Workers, https://www.socialsecurity.gov/employer/hiring.htm(last visited Oct. 19, 2016). The Social Security Administration also has a process by which employers can report the wages of individuals who lack Social Security numbers. U.S. Dep't of the Treasury, Internal Revenue Serv., Publication 15, 13 (Dec. 15, 2013) https://www.irs.gov/pub/irs-pdf/p15.pdf ("If you file Form W-2 on paper and your employee applied for an SSN but doesn't have one when you must file Form W-2, enter "Applied For" on the form. If you are filing electronically, enter all zeros (000-00-000) in the SSN field.").

^[65] Cf. Guerrero v. Ca. Dep't. of Corr. & Rehab., 119 F.Supp.3d 1065, 1076-77 (N.D. Cal. 2015) (finding that the California Department of Corrections' policy of screening out certain corrections officer candidates in whole or in part due to their past use of an invalid Social Security number had a disparate impact based on Latino national origin).

^[66] See Albert-Aluya v. Burlington Coat Factory Warehouse Corp., 470 F. App'x 847, 850 (11th Cir. 2012) (finding that "Title VII makes it unlawful to fire an employee or to otherwise discriminate against an employee based on the employee's national origin").

^[67] See, e.g., Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 630-33 (7th Cir. 2009) (reversing dismissal of national origin discrimination claim because plaintiff, a teacher of Polish descent, presented evidence that the school principal's animosity toward people of Polish descent motivated her recommendation not to renew the teacher's contract); Avila v. Jostens, Inc., 316 F. App'x 826, 832-34 (10th Cir. 2009) (holding that a reasonable jury could conclude that the employer's reasons for terminating the Hispanic plaintiff were a pretext for national origin discrimination based on evidence that plaintiff's supervisor disciplined him more frequently and severely than non-Hispanic employees, made derogatory comments about his national origin, terminated him for poor work quality one month after he received a positive performance evaluation, and issued disciplinary warnings in a manner that was inconsistent with the employer's policies and practices).

^[68] The facts in this example are similar to the facts alleged in EEOC v. Hamilton Growers, Inc., No. 7:11-cv-00134-HL (M.D. Ga. filed Oct. 4, 2011), which was settled in December 2012. For more background information about the case, see Press Release, EEOC, Hamilton Growers to Pay $500,000 to Settle EEOC Race/National Origin Discrimination Lawsuit (Dec. 13, 2012), http://www.eeoc.gov/eeoc/newsroom/release/12-13-12.cfm.

^[69] 42 U.S.C. § 2000e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that . . . national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."); see Perez v. N.J. Transit Corp., 341 F. App'x 757, 761-62 (3d Cir. 2009) (holding that district court erred by failing to apply a mixed motive analysis to national origin discrimination claim; a reasonable jury could conclude that Hispanic transit police officer's national origin was a motivating factor for his termination in light of discriminatory comments made by the decision maker).

^[70] See 42 U.S.C. § 2000e-5(g)(2)(B).

^[71] Id.; see Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (finding that "available remedies [under § 2000e-5(g)(2)(B)] include only declaratory relief, certain types of injunctive relief, and attorney's fees and costs"); Darchak,580 F.3d at 633 (same).

^[72] In FY 2015, 3,535 national origin charges included a harassment claim, representing about 37% of the 9,438 national origin charges filed that year.

^[73] See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (holding that Title VII is violated "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' . . . that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'") (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-67 (1986)); EEOC v. WC&M Enters., 496 F.3d 393, 400 (5th Cir. 2007) (finding that the EEOC presented sufficient evidence to create an issue of fact as to whether the employee was subjected to national origin harassment that was "so severe or pervasive as to alter a condition of his employment").

^[74] Harris, 510 U.S. at 21 ("Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview."); WC&M Enters., 496 F.3d at 399 (stating that "the [harassing] conduct complained of must be both objectively and subjectively offensive . . .[;] not only must the victim perceive the environment as hostile, the conduct must also be such that a reasonable person would find it to be hostile or abusive" (citing Harris, 510 U.S. at 21-22)).

^[75] See WC&M Enters., 496 F.3d at 400-02 (finding that evidence that a Muslim car salesperson of Indian descent was repeatedly called "Taliban" and referred to as an "Arab" by his coworkers, told that he should "just go back where [he] came from," and informed by a manager that "[t]his is America . . . not the Islamic country where you come from," supported claim that he was subjected to a hostile work environment based on his national origin and religion); Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002) (finding that a reasonable person would perceive offensive "graffiti, remarks, and other harassing conduct" to be based upon Hispanic employee's race and ethnicity); Zayadeen v. Abbott Molecular, Inc., No. 10 C 4621, 2013 WL 361726, at *8 (N.D. Ill. Jan. 30, 2013) (holding that derogatory comments by coworkers about the plaintiff's physical appearance, his Jordanian accent, his native language (Arabic), and the Jordanian food he ate could constitute national origin harassment).

^[76] See, e.g., Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 958-60 (10th Cir. 2012) (reversing grant of summary judgment for employer because employee of Mexican origin presented evidence that her supervisors subjected her to a hostile work environment by repeatedly making offensive jokes and comments about Latinos); Galdamez v. Potter, 415 F.3d 1015, 1023-24 (9th Cir. 2005) (holding that a reasonable jury could conclude that customers subjected postmaster of Honduran origin to a hostile work environment based on her national origin; harassment included offensive remarks about her accent and foreign birth, "racially charged references to potential mob violence," and direct and indirect threats to her physical safety).

[77] The facts in this example are similar to those in Amirmokri v. Baltimore Gas & Electric Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (holdingthat Iranian emigrant employed as an engineer at a nuclear power plant established a prima facie case of national origin harassment).

[78] If Bill continues this conduct, however, over time it could result in actionable harassment that violates Title VII.

^[79] See, e.g., Maldonado v. City of Altus, 433 F.3d 1294, 1304-06 (10th Cir. 2006) (finding thatanEnglish-only language restrictive policy itself, and not just its effect in evoking hostility by coworkers, can contribute to a hostile work environment, at least where there is no apparent reason for the restriction; "[t]he less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language"), overruled in part on other groundsby Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 66-69 (2006); Garcia v. Garland Indep. Sch. Dist., No. 3:11-CV-502-N-BK, 2013 WL 5299264, at *4-6 (N.D. Tex. Sept. 20, 2013) (denying employer's motion for summary judgment, in part, because Hispanic cook presented evidence to create a reasonable inference that she was subjected to a hostile work environment based on her national origin when her supervisor prohibited employees from speaking Spanish in the kitchen at any time, joked about the cook's mispronunciation of English words, and ridiculed her on a daily basis).

^[80] For a discussion of whether an English-only rule, or other language restrictive policy, is unlawful, refer to section V.C.

^[81] This example is based on the facts alleged in EEOC v. Cent. Cal. Found. for Health d/b/a Delano Reg'l Med. Ctr, No. 1:10-CV-01492-LJO-JLT (E.D. Cal., consent decree entered Sept. 17, 2012). In August 2012, the hospital agreed to pay $975,000 and provide other relief to settle the case. See Press Release, EEOC, Delano Regional Medical Center to Pay nearly $1 Million in EEOC National Origin Discrimination Suit (Sept. 17, 2012), http://www.eeoc.gov/eeoc/newsroom/release/9-17-12a.cfm.

^[82] The standard for employer liability for harassment by supervisors was established by the Supreme Court in two leading decisions addressing sexual harassment: Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The same standard applies to national origin harassment by a supervisor. Gotfryd v. Book Covers, Inc., No. 97 C 7696, 1999 WL 20925, at *5-7(N.D. Ill. Jan. 7, 1999) (applying Ellerth and Faragher standards to national origin discrimination).

^[83] See Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).

^[84] Ellerth, 524 U.S. at 760(explaining that the harasser is "aided in accomplishing" the harassment by his relationship to the employer when a supervisor "takes a tangible employment action against a subordinate"); Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1303 (11th Cir. 2007) (stating that the affirmative defense is not available where the "discrimination the employee has suffered included a tangible employment action"); Ferraro v. Kellwood Co., 440 F.3d 96, 101, 102 (2d Cir. 2006) (stating that the affirmative defense is not available ifatangible employment action was taken against an employee as part of a supervisor's discriminatory harassment; explaining that harassment culminates in a tangible employment action iftheaction is "linked" to the harassment). But see Hall v. City of Chicago, 713 F.3d 325, 335 (7th Cir. 2013) (concluding that work reassignment could not preclude affirmative defense because it occurred at the beginning of the assignment to the Division and therefore could not have been the "culmination" of anything).

^[85] Ellerth, 524 U.S. at 761-62. An individual may qualify as a supervisor even if her authority to take a tangible employment action is subject to approval by higher management. Vance, 133 S. Ct.at 2446 n.8 (citing Ellerth, 524 U.S. at 762).

^[86] An employer will also be liable for unlawful harassment if the harasser is of a sufficiently high rank to fall "within that class . . . who may be treated as the organization's proxy." Faragher, 524 U.S. at 789. In such circumstances, the harasser's unlawful harassment is automatically imputed to the employer. See also Ellerth, 524 U.S. at 758 (finding that under agency principles an employer is indirectly liable for the agent's conduct "where the agent's high rank in the company makes him or her the employer's alter ego").

^[87] Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. A determination as to whether an employee unreasonably failed to take advantage of preventive or corrective opportunities will depend on the particular circumstances and information available to the employee at that time. Faragher, 524 U.S. at 805-07. In evaluating the effectiveness of the employer's complaint mechanism, the Commission will consider whether it was accessible to all employees, including whether it was accessible in the native languages spoken by the employees if the employer knew or should have known of the employees' limited language capabilities. See, e.g., EEOC v. Spud Seller, Inc., 899 F. Supp. 2d 1081, 1095 (D. Colo. 2012) (concluding that there was a genuine factual dispute as to whether the employer took "reasonable care" to prevent sexual harassment of its Spanish speaking employees, where the policy was only in English "and there [was] no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish speaking employees"); EEOC v. Sunfire Glass, Inc., No. CV-08-1784-PHX-LOA, 2009 WL 976495, at *14 (D. Ariz. Apr. 10, 2009) (ordering the defendant to post a notice on its sexual harassment policy in English and Spanish and offer trainings on unlawful sex discrimination and sexual harassment in English and Spanish).

^[88] 29 C.F.R. § 1606.8(d)-(e); see Vance, 133 S. Ct. at 2453 (stating that a plaintiff can prove unlawful harassment "by showing that his or her employer was negligent in failing to prevent harassment from taking place"); Galdamez v. Potter, 415 F.3d 1015, 1024 (9th Cir. 2005) (citation omitted) (holding that once the employer knew or reasonably should have known that non-employees were harassing the plaintiff based on her national origin, it was required to "undertak[e] remedial measures 'reasonably calculated to end the harassment'"); Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 801 (8th Cir. 2003) ("Because those who engaged in the [national origin] harassment did not have supervisory power over [the plaintiff], she was required to show that [the employer] knew or should have known about the harassment and failed to respond in a prompt and effective manner."). "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." 29 C.F.R. § 1606.8(e).

^[89] Victims of certain crimes who are willing to assist in the investigation or prosecution of those crimes may submit an application for a U nonimmigrant visa (U visa) to the Department of Homeland Security, U.S. Citizenship and Immigration Services. The U visa provides temporary immigration benefits, including an automatic grant of work authorization and eligibility to adjust status to lawful permanent resident after three years of continuous presence in the U.S. Among other application requirements, a U visa petitioner must ask a federal law enforcement agency or official to complete a certification form confirming that the victim was helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of criminal activity. The EEOC is one of several government authorities that may certify that the individual was a victim of qualifying criminal activity pursuant to the Victims of Trafficking and Violence Prevention Act of 2000, 8 U.S.C. §§ 1101(a)(15)(U), 1184(p), and the interim final rule of the Department of Homeland Security, U.S. Citizenship and Immigration Services (DHS/USCIS), 72 Fed. Reg. 53014 (Sept. 17, 2007), 8 C.F.R. § 214.14. See EEOC,Procedures: Requesting EEOC Certification for U Nonimmigrant Classification (U Visa) Petitions in EEOC Cases, http://www.eeoc.gov/eeoc/foia/u_visa.cfm (last visited Oct. 19, 2016). Victims of human trafficking may also submit an application for a T nonimmigrant visa (T visa) to the Department of Homeland Security, U.S. Citizenship and Immigration Services. Like the U visa, the T visa provides temporary immigration benefits, including an automatic grant of work authorization and eligibility to adjust status to lawful permanent resident after three years. Unlike the U visa, however, the T visa application does not require applicants to submit a law enforcement agency certification. Instead, T visa applicants may submit an optional endorsement from a law enforcement agency, including the EEOC. For more information about U and T visas, refer to Dep't of Homeland Sec., U.S. Citizenship and Immigration Servs., Victims of Human Trafficking & Other Crimes, https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes (last visited Oct. 19, 2016).

^[90] See U.S. Census Bureau, United StatesQuickFacts, https://www.census.gov/quickfacts/fact/table/US/PST045221 (last visited Oct. 19, 2016).

^[91] See U.S. Census Bureau, Language Use and English-Speaking Ability: 2000, Census 2000 Brief, 1 (Oct. 2003), http://www.census.gov/prod/2003pubs/c2kbr-29.pdf; U.S. Census Bureau, Table 1. Language Use and English Ability, Persons 5 Years and Over, by State: 1990 Census, https://www.census.gov/data/tables/time-series/dec/cph-series/cph-l/cph-l-133.html(last visited Oct. 19, 2016).

^[92] See 29 C.F.R. § 1606.1; Fragante v. City & Cty. of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989).

^[93] See Anne-Sophie Deprez-Sims & Scott B. Morris, Accents in the Workplace: Their Effects During a Job Interview, 45 Int'l J. of Psychol. 417, 418 (2010) (stating that "[a]ccents are likely to serve as indicators for social categories such as ethnicity or country of origin").

^[94] Fragante, 888 F.2d at 596 (stating that accent and national origin are "obviously inextricably intertwined," therefore requiring a "very searching look" at employment decisions based on accent); see Albert-Aluya v. Burlington Coat Factory Warehouse Corp., 470 F. App'x 847, 851 (11th Cir. 2012) (stating that "[c]omments about an accent may indicate discrimination based on one's national origin"); Tseng v. Fla. A&M Univ., 380 F. App'x 908, 909 (11th Cir. 2010) ("Discrimination based on accent can be national origin discrimination.").

Accent discrimination violates Title VII if it stemsfrom bias or prejudice that devalues or stigmatizes certain accents rather than from an inability to comprehend an individual when she speaks. See Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1383 (1991) ("typically, accent discrimination occurs because of unconscious bias, careless evaluation, false assumptions about speech and intelligibility, mistaken overvaluing of the role of speech on the job, or concessions to customer prejudice"); see also Sharon L. Segrest Purkiss, et al., Implicit Sources of Bias in Employment Interview Judgments and Decisions, 101 Org. Behav. and Hum.Decision Processes 152, 155 (2006) ("A combination of ethnic minority cues [e.g., ethnic name and ethnic accent] may be more likely to trigger an unconscious and automatic negative reaction because of the salience of the cues and the ease in which one is more confident about placing someone in a class or category; essentially, stereotyping."). In some instances, listener prejudice could result in a bias against an accent that the listener perceives as "low status" with negative associations (as opposed to a "high status" accent that he associates with wealth, power, or prestige). Matsuda, supra, at 1352-55 ("Low-status accents will sound foreign and unintelligible. High-status accents will sound clear and competent.").

^[95] "The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity . . . because an individual has the . . . linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1.

^[96] See Fragante, 888 F.2d at 596 (stating that district courts should conduct "a very searching look" into claims where an adverse employment decision was based on anaccent); Machado v. Real Estate Res., LLC, No. 12-00544 RLP, 2013 WL 3944511, at *8 (D. Haw. July 30, 2013) (denying employer's motion for summary judgment because the Indonesian former employee produced evidence that she was terminated because of her "strong" accent; "[d]etermining whether Defendant made an 'honest' assessment of Plaintiff's oral communication skills and whether Defendant made a reasonable investigation as to if those skills would 'materially interfere' with Plaintiff's job performance is a fact-intensive inquiry . . . typically ill-suited for summary judgment").

^[97] Fragante, 888 F.2d at 596; Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1195 (9th Cir. 2003) (same).

^[98] See Fragante, 888 F.2d at 596("An adverse employment decision may be predicated upon an individual's accent when - but only when - it interferes materially with job performance."); see also Dafiah v. Guardsmark, LLC, No. 10-cv-03119-RBJ-MJW, 2012 WL 5187762, at *5 (D. Colo. Oct. 19, 2012) (same).

^[99] See Berke v. Ohio Dep't of Pub. Welfare, 628 F.2d 980, 981 (6th Cir. 1980) (finding that employee with Polish accent whose command of the English language was "well above that of the average adult American" was improperly denied two positions "because of her accent which flowed from her national origin");Dafiah, 2012 WL 5187762, at *6 (denying defendant's motion for summary judgment because plaintiffs with Sudanese and Ethiopian accents provided evidence suggesting that they were able to successfully fulfill their security guard duties, including communicating with fellow employees in English).

^[100] This example is based on the facts of Albert-Aluya v. Burlington Coat Factory Warehouse Corp., 470 F. App'x 847 (11th Cir. 2012). See also In re: Rodriguez, 487 F.3d 1001, 1008-09 (6th Cir. 2007) (vacating summary judgment on claim that plaintiff was not promoted in violation of Michigan's Elliott-Larsen Civil Rights Act; manager's statements indicating that he would not promote plaintiff to a supervisor position because of his "[Hispanic] accent andspeech pattern," along with other disparaging remarks regarding plaintiff's accent and ethnicity, constituted direct evidence of national origin discrimination); Akouri v. Fla. Dep't. of Transp., 408 F.3d 1338, 1348 (11th Cir. 2005) (upholding jury's finding of national origin discrimination based on employer's statement to plaintiff that he was passed over for promotion because White employees were "not going to take orders from you, especially if you have an accent . . .").

^[101] Compare Fragante, 888 F.2d at 597-99 (holding that defendant did not violate Title VII when it refused to hire an individual with a Filipino accent for a position requiring constant communication with the public because his pronounced accent materially interfered with his ability to communicate orally), with Carino v. Univ. of Okla. Bd. of Regents, 750 F.2d 815, 819 (10th Cir. 1984) (finding that an individual with a Filipino accent was unlawfully demoted from his position as a supervisor and not considered for a supervisory position in a new facility despite the fact that his accent would not interfere with job duties).

^[102] See generally Surti v. G.D. Searle & Co., 935 F. Supp. 980, 987 (N.D. Ill. 1996) (noting that "[a] major complicating factor in applying Title VII to accent cases is the difficulty in sorting out accents that actually impede job performance from accents that are simply different from some preferred norm imposed, whether consciously or subconsciously, by the employer")(quoting Matsuda, supra note 94, at 1352).

^[103] This example is based on the facts of Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003) (reversing grant of summary judgment for employeron discrimination claims).

^[104] See cases cited supra note 52 (discussing discriminatory customer preference).

^[105] See Stephen v. PGA Sheraton Resort, Ltd., 873 F.2d 276, 280-81 (11th Cir. 1989) (finding that employer's decision to terminate purchasing clerk was justified by business necessity because his inability to adequately speak and understand English prevented him from performing the duties required of the position); Mejia v. N.Y. Sheraton Hotel, 459 F. Supp. 375, 377 (S.D.N.Y. 1978) (holding that a chambermaid was lawfully denied a promotion to a front office cashier position because she was not qualified for the position due to her inability "to articulate clearly or coherently and to make herself adequately understood in the English language"); cf. Colindres v. Quietflex Mfg., No. Civ. A. H-01-4319, H-01-4323, 2004 WL 3690215, at *12 (S.D. Tex. Jan. 4, 2006) (denying defendants' motion for summary judgment on plaintiff's disparate impact claims because issue of material fact existed as to whether employer's English language fluency requirement "reinforced racial barriers between departments" and deterred qualified nonfluent English speakers and Latino workers who did speak English from applying to transfer to a higher paying department).

^[106] Shieh v. Lyng, 710 F. Supp. 1024, 1032-34 (E.D. Pa. 1989), aff'd, 897 F.2d 523 (3d Cir. 1990) (finding that the plaintiff was lawfully demoted because his language abilities were too limited to enable him to produce the complex scientific manuscripts required by his position).

^[107] See Strong v. Progressive Roofing Servs., No. 05-1023-PHX-EHC, 2007 WL 2410354, at *4-6 (D. Ariz. Aug. 20, 2007) (finding that plaintiff was not selected for a safety coordinator position because he was not fluent in Spanish; requirement of Spanish fluency was job related and consistent with business necessity); Henderson v. Rice, 407 F. Supp. 2d 47, 51-52 (D. D.C. 2005) (finding no discrimination where plaintiff was not selected for a consular position in Germany because "without German fluency, the plaintiff does not meet the minimum qualifications"). But cf. Chhim v. Spring Branch Indep. Sch. Dist., 396 F. App'x 73, 74 (5th Cir. 2010) (holding that "neither a preference nor a requirement of bilingual ability would constitute discrimination based on race or national origin" against those who do not speak both languages).

^[108] See Hernandez v. Muns, No. 96-40087, 1996 WL 661171, at *4 (5th Cir. Oct. 21, 1996) (finding no national origin discrimination where plaintiff "was asked to do Spanish translations during her normal working hours as part of her job duties," and "her translation responsibilities did not cause her to work extra hours without compensation"); Cota v. Tucson Police Dep't, 783 F. Supp. 458, 473-74 (D. Ariz. 1992) (finding that Title VII was not violated because, although Hispanic employees performed more Spanish-related tasks than non-Hispanic employees, there was no evidence that Hispanic workers performed extra or more difficult, rather than merely different, work).

^[109] This example is based on the facts of Chimm v. Spring Branch Indep. Sch. Dist., No. H-09-3032, 2009 WL 5170214 at *1-3 (S.D. Tex. Dec. 18, 2009).

^[110] Even for bilingual persons who speak English proficiently, their primary language remains closely tied to their national origin. Gutierrez v. Mun. Court, 838 F.2d 1031, 1039 (9th Cir. 1988), remanded with directions to vacate as moot, 490 U.S. 1016 (1989), vacated as moot, 873 F.2d 1342 (9th Cir. 1989); see also Garcia v. Spun Steak Co., 13 F.3d 296, 298 (9th Cir. 1993) (Reinhardt, J., dissenting from denial of rehearing en banc) (observing that even for a bilingual individual, "native language remains an important manifestation of his ethnic identity and a means of affirming links to his original culture").

^[111] See Lopez v. Flight Servs. & Sys. Inc., 881 F. Supp.2d 431, 440 (W.D. N.Y. 2012) (holding that an employer "may not forbid employees from speaking their native tongues if the reason is because of discriminatory animus toward the employee's national origin").

^[112] This example is based on facts similar to those in Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006). For a discussion of when a language-restrictive policy may contribute to a broader hostile work environment, such as where workers are subjected to an English-only policy and to ethnic epithets and taunting by coworkers, refer to section IV.

^[113] See Wilkie v. Geisinger Sys. Servs., No. 3:12-CV-580, 2014 WL 4672489, at *10 (M.D. Pa. Sept. 18, 2014) ("[I]f Plaintiff can prove that she alone was prohibited from speaking another language, then such a restriction would be indicative of [national origin] discrimination."); cf. Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) ("Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.").

^[114] See generally Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) ("Likewise, we can envision a case in which such rules are enforced in such a draconian manner that the enforcement itself amounts to harassment. In evaluating such a claim, however, a court must look to the totality of the circumstances in the particular factual context in which the claim arises.").

^[115] 29 C.F.R. § 1606.7(a) ("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 violates title VII and will closely scrutinize it."). The Commission first published the Guidelines on Discrimination Because of National Origin, addressing "Speak-English-only rules," at 45 Fed. Reg. 85,632, 85,636 (Dec. 29, 1980).

^[116] See EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066, 1073 (N.D. Tex. 2000) (stating that English-only rules "disproportionately burden national origin minorities because they preclude many members of these groups from speaking" their most effective language but "rarely, if ever, hav[e] that effect on non-minorit[ies]").

^[117] See id. at 1070 (noting that Hispanic employees "were faced with the very real risk of being reprimanded or even losing their jobs if they violated the English-only rule, even if such non-compliance was inadvertent. There was no comparable risk posed by the policy for Defendant's non-Hispanic employees."); Lisa L. Behm, Comment, Protecting Linguistic Minorities Under Title VII: The Need for Judicial Deference to the EEOC Guidelines on Discrimination Because of National Origin, 81 Marq. L. Rev. 569, 596-97 (1998) (noting that bilingual individuals whose preferred language is not English may be subject to adverse employment decisions for violating their employer's English-only policy while the same policy would "have almost no impact on native English-speaking employees").

^[118] Maldonado v. City of Altus, 433 F.3d 1294, 1306 (10th Cir. 2006) (quoting 29 C.F.R. § 1606.7(a) as persuasive authority); Garcia v. Spun Steak Co., 13 F.3d 296, 298 (9th Cir. 1993) (Reinhardt, J., dissenting from denial of rehearing en banc) (agreeing with EEOC that "being forbidden under penalty of discharge to speak one's native tongue generally has a pernicious effect on national origin minorities"); see also EEOC v. Synchro-Start Prods., Inc., 29 F. Supp. 2d 911, 914 (N.D. Ill. 1999) (stating that EEOC English-only guidelines take the "modest step" of creating an inference that English-only rules disadvantage workers on the basis of national origin (citing 29 C.F.R. § 1606.7)).

As discussed in section IV.A, a language-restrictive policy also may contribute to a broader hostile work environment.

^[119] See 29 C.F.R. § 1606.7(a). As discussed in section V.C.1 ("Policies Adopted for Discriminatory Reasons"), the adoption of a language-restrictive policy may constitute national origin discrimination. Thus, such policies may result in both unlawful disparate treatment as well as disparate impact discrimination.

^[120] 29 C.F.R. § 1606.7. Gutierrez v. Mun. Court, 838 F.2d 1031, 1040 (9th Cir. 1988) (agreeing with EEOC guidelines "that English-only rules generally have an adverse impact on protected groups"). But see EEOC v. Beauty Enters., Inc., No. 3:01CV378 (AHN), 2005 WL 2764822, at *9-10 (D. Conn. Oct. 25, 2005) (criticizing EEOC guidelines for imposing a "blanket rule" that "ignores the reality" that the burden imposed by English-only rules varies and disagreeing that evidence of impact would necessarily consist of "conclusory self-serving statements"). But cf. Reyes v. Pharma Chemie, Inc., 890 F. Supp. 2d 1147, 1164 (D. Neb. 2012) (concluding that EEOC guidelines "contravene" Title VII).

The Commission disagrees with the Ninth Circuit's rejection of the EEOC guidelines' position as "presuming that an English-only policy has a disparate impact in the absence of proof." See Garcia v. Spun Steak Co., 998 F.2d 1480, 1490 (9th Cir. 1993). Although the EEOC agrees with the court that non-English speakers may be adversely impacted by an English-only rule because these employees could not "enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak," id. at 1488, the EEOC disagrees with the court's statement that an English-only rule does not have a disparate impact on fully bilingual employees, who "can readily comply with the English-only rule and still enjoy the privilege of speaking on the job." Id. at 1487. See Garcia v. Spun Steak Co., 13 F.3d 296, 298 (9th Cir. 1993) (Reinhardt, J., dissenting from denial of rehearing en banc) ("Whether or not the employees can readily comply with a discriminatory rule is by no means the measure of whether they suffer significant adverse consequences."). As scholars and courts have recognized, bilingual speakers have varying levels of English proficiency and may often inadvertently move from one language to another, which is referred to as "code switching." See Premier Operator Servs., 113 F. Supp. 2d at 1069-70 (citing report and testimony of professor of linguistics and Hispanic language and culture that "adhering to an English-only requirement is not simply a matter of preference for Hispanics, or other persons who are bilingual speakers"). English-only rules also can adversely impact bilingual speakers by subjecting them to discipline for violating such rules while imposing no comparable risk for English-speaking employees. Id.

^[121] See, e.g., Hamer v. City of Atlanta, 872 F.2d 1521, 1533 (11th Cir. 1989) ("The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.")(quoting Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 245 (5th Cir. 1974)); EEOC v. Rath Packing Co., 787 F.2d 318, 332-33 (8th Cir. 1986) (finding that policy against employing spouses violated Title VII because it had a disparate impact on women and was not shown to be "essential to safety and efficiency"); EEOC Dec. No. 81-8, 1980 WL 8898 (1980) (stating that the issue is "whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business")(quoting Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971)).

^[122] See, e.g., El v. Se. Pa. Trans. Auth., 479 F.3d 232, 242 (3d Cir. 2007) (noting that the Supreme Court has rejected "criteria that are overbroad or merely general, unsophisticated measures of a legitimate job-related quality" and that Congress enacted a "business necessity" test, not a "business convenience" test); EEOC v. Allstate Ins., 458 F. Supp. 2d 980, 987 (E.D. Mo. 2006) ("[T]he burden of showing business necessity 'is a heavy one,' requiring the Defendant to 'show that their selection plan has a manifest relationship to the employment in question and that there is a compelling need to maintain the practice.'") (quoting Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 692 (8th Cir.1983)). But see Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 621-22 (S.D. N.Y. 2009) (upholding English-only rule based on employer's evidence of "valid business reason"); Kania v. Archdiocese of Phila., 14 F. Supp. 2d 730, 736 (E.D. Pa. 1998) (concluding that English-only policy was valid as a matter of law as employer had "valid business justification"). The Commission disagrees with the less stringent manner in which Pacheco, Kania, and some other courts have applied the business necessity standard established under Dothard v. Rawlinson, 433 U.S. 321 (1977), Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), and Griggs v. Duke Power Co., 401 U.S. 424 (1971), and codified by the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codifying the burden of proof in disparate impact cases).

^[123] See Premier Operator Servs., Inc., 113 F. Supp. 2d at 1070-71 (finding that "[i]nsufficient credible evidence" was presented to establish business necessity for an English-only rule because speaking Spanish was a job requirement for the employees affected by the rule; there was no credible evidence of "discord" between employees due to Spanish being spoken in the workplace; there was no evidence that the rule and its enforcement "promoted 'harmony' in the workplace"; and there was insufficient evidence to establish that employees were unable to communicate with their supervisors in carrying out their job duties and responsibilities).

^[124] Dothard, 433 U.S. at 331 n.14 ("[A] discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge."); see also Griggs, 401 U.S. at 431-32.

^[125] See Dothard, 433 U.S. at 331 n.14; Griggs, 401 U.S. at 431-32; see also Robinson., 444 F.2d at 798 ("[T]he applicable test is not merely whether there exists a business purpose for adhering to a challenged practice. The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.").

^[126] See El, 479 F.3d at 240 (noting that the Supreme Court has rejected "bare" or "common-sense"-based assertions of business necessity).

^[127] See NAACP v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 477 (3d Cir. 2011) (noting that the Supreme Court has rejected "rough-cut measures of employment-related qualities" and has instead required employers to tailor criteria "to measure those qualities accurately and directly for each applicant")(quoting El, 479 F.3d at 240).

^[128] Cf. Strong v. Progressive Roofing Servs., No. 05-1023-PHH-EHC, 2007 WL 2410354, at *5 (D. Ariz. Aug. 20, 2007) (holding that Spanish language fluency for a supervisory position was "job related for the position in question" and "consistent with business necessity" because it was in the employer's "interest to communicate safety information in Spanish to employees whose comprehension ability is better in Spanish").

^[129] This example is based on the facts alleged in Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1171 (10th Cir. 2007) (finding that hospital's limited English-only rule requiring housekeepers to speak English when working in operating rooms while performing job duties did not violate Title VII).

^[130] E.g., Kania v. Archdiocese of Phila., 14 F. Supp. 2d 730, 736 (E.D. Pa. 1998) (stating that the "Church adopted its English-only rule to improve interpersonal relations at the Church, and to prevent Polish-speaking employees from alienating other employees, and perhaps church members themselves").

^[131] See EEOC Dec. No. 81-25, 1981 WL 17720, at *2 (July 6, 1981) (concluding that English-only policy was not justified to address employee communication problems; "[s]pecific problems . . . have specific solutions which do not require an absolute prohibition against speaking any language other than English in the workplace"); Janet Ainsworth, Language, Power, and Identity in the Workplace: Enforcement of "English-Only" Rules by Employers, 9 Seattle J. Soc. Just. 233, 247-48 (2010) (noting that workforce conflicts stemming from derogatory comments stated in foreign languages are "better addressed by implementing policies forbidding employees to insult or harass one another regardless of the language used to do so" and that "[r]estricting communication by bilinguals is hardly calculated to result in the asserted goal of achieving an ethnically harmonious workplace").

^[132] 29 C.F.R. § 1606.7(c).

^[133] 45 Fed. Reg. 85,632, 85,635 (Dec. 29, 1980) (EEOC's preamble to "Guidelines on Discrimination Because of National Origin").

^[134] See id.

^[135] 29 C.F.R. § 1606.7(c).

^[136] Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) (stating that "draconian" enforcement of an English-only rule could amount to harassment).

^[137] See sources cited supra note 120 (discussing how language restrictive policies can adversely impact bilingual employees who may unconsciously alternate from English to another language during informal conversations).

^[138] 29 C.F.R. § 1606.5(a); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 92 (1973) (stating that Title VII "prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin"); see also Lixin Liu v. BASF Corp., 409 F. App'x 988, 991 (8th Cir. 2011) (per curiam) (citation omitted) (finding no Title VII violation where the plaintiff "conflate[d] national origin and alienage. His employment was terminated because of his immigration status, not his Chinese ancestry.").

^[139] Espinoza, 414 U.S. at 92. The antidiscrimination provision of the Immigration and Nationality Act (INA) expressly prohibits employers with four or more employees from discriminating based on citizenship or immigration status with respect to hiring, firing, and recruitment or referral for a fee. See 8 U.S.C. § 1324b(a)(1)(B). In cases where there may be overlapping jurisdiction between the EEOC (Title VII) and the Department of Justice's Office of Special Counsel (INA), EEOC investigators should consult the EEOC/OSC Memorandum of Understanding, supra note 29.

^[140] See 8 U.S.C. § 1324a(1) (providing that entities or persons must not employ unauthorized aliens in the United States knowing that they are unauthorized to work with respect to such employment).

^[141] This example is based on the facts alleged in EEOC v. Express Servs., Inc., No. 6:11-CV-00279-HFF-BHH (D. S.C. consent decree filed June 10, 2011). In June 2011, the staffing firm and the subcontractor agreed to pay $42,500 and provide other relief to settle the case. See Press Release, EEOC, Temporary Staffing Firm and Client Company To Pay $42,500 to Settle EEOC National Origin Lawsuit (Jun. 6, 2011), http://www.eeoc.gov/eeoc/newsroom/release/6-6-11a.cfm.

^[142] Exec. Order No. 11,935, 41 Fed. Reg. 37,301 (Sept. 2, 1976).

^[143] 8 U.S.C. § 1324b(a)(1)(B).

^[144] 8 U.S.C. § 1324b(a)(6).

^[145] See generally U.S. Dep't of Justice, Civil Rights Div. Office of Special Counsel for Immigration-Related Unfair Emp't Practices, http://www.justice.gov/crt/about/osc/(last visited Oct. 19, 2016).

^[146] See generally U.S. Dep't of Labor, Wage and Hour Div., http://www.dol.gov/whd/(last visited Oct. 19, 2016).

^[147] At the time this document was drafted, the Wage and Hour Division of the U.S. Department of Labor investigates alleged violations of some visa program requirements, including H-1B and H-2A visa requirements. See id.

^[148] E-Verify is an Internet-based program administered by the U.S. Department of Homeland Security and the Social Security Administration through which employers can verify the employment eligibility of their employees. See supra note 61.

^[149] For detailed information on referral procedures for charges that may be within the jurisdiction of the Office of Special Counsel for Immigration-Related Unfair Employment Practices, EEOC investigators should consult the EEOC/OSC Memorandum of Understanding, supra note 29. As described in the Memorandum of Understanding, if the employer has more than 14 employees, EEOC can investigate a claim of national origin discrimination under Title VII, while OSC can investigate the possible citizenship status discrimination and unfair documentary practices under 8 U.S.C. § 1324b(a)(1) and (a)(6), respectively.

^[150] Title VII's prohibition on employment discrimination also protects individuals in United States territories. See supra note 3.

^[151] EEOC Threshold Issues Compliance Manual, supra note 3, at § 2-III A.4, https://www.eeoc.gov/policy/docs/threshold.html#2-III-A-4("Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status."); cf. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (holding "Tit[le] VII protects all individuals from unlawful discrimination, whether or not they are citizens of the United States.").

^[152] See supra note 2.

^[153] See Brief of the EEOC as Amicus Curiae In Support of the Plaintiff-Appellant, in Reyes-Gaona v. N.C. Growers Ass'n, 250 F.3d 861 (4th Cir. 2001) (No. 00-1963). The Fourth Circuit rejected the Commission's position, 250 F.3d at 866-67, finding that the Age Discrimination in Employment Act of 1967 (ADEA) does not protect foreign nationals who apply for U.S.-based employment from outside the United States. Other courts have agreed with the Commission's position. See Denty v. SmithKline Beecham Corp., 109 F.3d 147, 150 n.5 (3d Cir. 1997) (finding that the place whereajob is performed constitutes the location of the work site for ADEA coverage purposes); Hu v. Skadden, Arps, Slate, Meagher & Flom LLP, 76 F. Supp. 2d 476, 477-78 (S.D. N.Y. 1999) (holding that a non-U.S. citizen was not protected by the ADEA with respect to employment in Beijing and Hong Kong, even though employment interviews and hiring decisions were made in New York); Gantchar v. United Airlines, Inc., No. 93 C 1457, 1995 WL 137053, at *4-6 (N.D. Ill. Mar. 28, 1995) (finding that Title VII jurisdiction is dependent on the location of potential employment).

^[154] 42 U.S.C. § 2000e-3(a). See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59-60 (2006) (holding that Title VII's anti-retaliation provision forbids employer actions that "discriminate against" an employee for opposing any practices made unlawful by Title VII). The other statutes enforced by the EEOC also prohibit retaliation. See 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203 (ADA); 29 U.S.C. § 215(a)(3) (Equal Pay Act); 42 U.S.C. § 2000ff-6(f) (GINA). For more information about retaliation, refer to EEOC, Enforcement Guidance on Retaliation and Related Issues (Aug. 25, 2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues