EEOC Issues Guidance on Anti-American National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) released a technical-assistance document, “Discrimination Against American Workers Is Against the Law,” emphasizing that Title VII protects American workers from national origin discrimination. While Title VII has long prohibited national origin discrimination broadly, including against Americans, this guidance is consistent with the stated priority of Andrea Lucas, Chair of the EEOC, to target Anti-American national origin bias and the steps the Trump administration has taken to increase the financial cost of procuring H-1B visas.

The guidance states that employers may not make employment decisions based on national origin, including decisions that show a preference for foreign workers or workers with a particular visa.

The guidance highlights several practices that may violate Title VII, including:

• Job advertisements expressing a preference for foreign nationals (e.g., “H-1B preferred” or “H-1B only”)

• Terminating American workers at a much higher rate than employees who are visa guest workers

• Making it more difficult for applicants from one national origin to apply for positions, such as subjecting U.S. workers to more laborious application methods than H-1B visa holders

• Harassment and creation of a hostile work environment based on national origin

• Retaliation against workers who report or oppose national origin discrimination

The guidance also stresses that “common business reasons” do not justify national origin discrimination. For example, employers cannot rely on customer or client preference, lower cost of labor, or beliefs that workers of a particular national origin are “more productive” or “possess a better work ethic” to justify disparate treatment.

While the new guidance is not inconsistent with Title VII, it does signal the EEOC’s heightened interest in using Title VII to target anti-American national origin discrimination. For instance, in November of last year, the EEOC entered into a $150,000 settlement with Seward and Son Planting Company, a farming operation in Mississippi, based on allegations that the farm discriminated against its American workers by providing foreign agricultural workers with preferential job assignments, more work hours, and higher compensation. Considering the EEOC’s priority, employers should review their policies and practices for compliance with Title VII. Employers with questions about national origin discrimination or compliance with Title VII should contact Sabrina Jorge at sjorge@fglawllc.com or any other attorney at the Firm.

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