(a) The Commission has consistently held that harassment on the basis of national origin is a violation of title VII. An employer has an affirmative duty to maintain a working environment free of harassment on the basis of national origin.
8
8 See CD CL68-12-431 EU (1969), CCH EEOC Decisions ¶ 6085, 2 FEP Cases 295; CD 72-0621 (1971), CCH EEOC Decisions ¶ 6311, 4 FEP Cases 312; CD 72-1561 (1972), CCH EEOC Decisions ¶ 6354, 4 FEP Cases 852; CD 74-05 (1973), CCH EEOC Decisions ¶ 6387, 6 FEP Cases 834; CD 76-41 (1975), CCH EEOC Decisions ¶ 6632. See also, Amendment to Guidelines on Discrimination Because of Sex, § 1604.11(a) n. 1, 45 FR 7476 sy 74677 (November 10, 1980).
(b) Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct:
(1) Has the purpose or effect of creating an intimidating, hostile or offensive working environment;
(2) Has the purpose or effect of unreasonably interfering with an individual's work performance; or
(3) Otherwise adversely affects an individual's employment opportunities.
(c) [Reserved]
(d) With respect to conduct between fellow employees, an employer is responsible for acts of harassment in the workplace on the basis of national origin, where the employer, its agents or supervisory employees, knows or should have known of the conduct, unless the employer can show that it took immediate and appropriate corrective action.
(e) An employer may also be responsible for the acts of non-employees with respect to harassment of employees in the workplace on the basis of national origin, where the employer, its agents or supervisory employees, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
Appendix A to § 1606.8—Background Information
The Commission has rescinded § 1606.8(c) of the Guidelines on National Origin Harassment, which set forth the standard of employer liability for harassment by supervisors. That section is no longer valid, in light of the Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Commission has issued a policy document that examines the Faragher and Ellerth decisions and provides detailed guidance on the issue of vicarious liability for harassment by supervisors. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/18/99), EEOC Compliance Manual (BNA), N:4075 [Binder 3]; also available through EEOC's web site, at www.eeoc.gov., or by calling the EEOC Publications Distribution Center, at 1-800-669-3362 (voice), 1-800-800-3302 (TTY).
[45 FR 85635, Dec. 29, 1980, as amended at 64 FR 58334, Oct. 29, 1999]
Notes of Decisions
Sims v. Montgomery Cnty. Comm'n, 766 F. Supp. 1052 (M.D. Ala. 1991).
“quoting 29 C.F.R. § 1606.8 (c). “While the supervisor’s direct authority over the plaintiff must be considered as a relevant factor,” the appellate court explained, “courts should also examine any evidence bearing on the overall structure of the workplace, including the relative…”
Etefia v. East Baltimore Cmty. Corp., 2 F. Supp. 2d 751 (D. Maryland 1998).
“29 C.F.R. § 1606.8 (c). The Fourth Circuit instead has found that, under general agency principles, illegal harassment is illegitimate corporate activity, beyond, the scope of a supervisor’s employment, and therefore cannot be directly imputed to the employer.”
Sarin v. Raytheon Co., 905 F. Supp. 49 (D. Mass. 1995).
· cites it 2× “29 C.F.R. § 1606.8 (West 1995). Section 1606.”
Rosenbloom v. Senior Resource, Inc., 974 F. Supp. 738 (D. Minnesota 1997).
“29 C.F.R. § 1606.8 (e). The key factor in the EEOC’s determination is whether the employer may exercise control over the third party.”
Vance v. S. Bell Tel. & Tel. Co., 863 F.2d 1503 (11th Cir. 1989).
· cites it 2× “2d at 1559 ; 29 C.F.R. § 1606.8 (c) (1988). In Sparks we reversed a grant of summary judgment for the defendant in a sexual harassment action brought against the plaintiffs employer under Title VII.”
Equal Emp. Opportunity Comm'n v. Ceisel Masonry, Inc., 594 F. Supp. 2d 1018 (N.D. Ill. 2009).
“See 29 C.F.R. § 1606.8 (e). However, Plaintiff points to future occasions on which Ceisel has been successful in asking the general contractor to remove graffiti, and a reasonable jury could find that Defendant’s failure to take any action was an unreasonable response to its…”
Thorpe v. Aramark Corr. Servs., LLC (M.D. Tenn. 2023).
· cites it 7× “Specifically, the complaint cites 29 C.F.R. § 1606.8 , 42 U.S.C. § 1197d, and the Tennessee Human Rights Act.”
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