EEOC Tells Employers Not to “Discriminate” Against American Workers

Last week, the Equal Employment Opportunity Commission (EEOC) released updated educational materials addressing national origin discrimination, alongside new technical guidance that “clarifies” the prohibition of discrimination against American workers. 

Providing no statistics or recent examples, the EEOC suggests that such discrimination is a “large-scale problem in multiple industries nationwide” and that “[m]any employers have policies and practices preferring illegal aliens, migrant workers, or non-immigrant guest workers (guest worker visa holders) over American workers.”  

Regardless of whether this is an actual or perceived problem, employers should be mindful that the EEOC is actively encouraging employees who suspect they have been subjected to national origin discrimination – even if they are American — to file a complaint.

This statement from the EEOC also comes on the heels of similar announcements by other relevant governmental agencies including the U.S. Department of Labor, which recently announced a new initiative called “Project Firewall” designed to increase audits of employers who utilize the H-1B visa program with the goal of “ensuring employers prioritize qualified Americans when hiring workers.”

The EEOC’s updated resources on national origin discrimination provide employers with common explanations of what constitutes unlawful treatment based on an individual’s birthplace, ancestry, culture, or linguistic characteristics. But the new technical guidance takes pains to note that national origin discrimination does not just impact people from outside the United States; it can also apply in the context of discrimination against Americans, such as favoring foreign workers over U.S. citizens or legal permanent residents (green card holders).

That said, employers should be mindful that applicants cannot be discriminated against because of citizenship status, either. 

Employers should anticipate heightened scrutiny of hiring, promotion and workplace practices that may impact individuals based on national origin or citizenship status.

So, what should employers consider now? 

• Review and Update Policies: Employers should ensure that their anti-discrimination policies explicitly address national origin and citizenship status. Policies should be reviewed for clarity and compliance with Title VII of the Civil Rights Act and the Immigration and Nationality Act (INA).
• Train Managers and HR Personnel: Continued training for those involved in recruitment, hiring, and management remains essential. Training should cover the expanded definitions and examples provided in the EEOC’s materials, including subtle forms of discrimination such as language requirements or assumptions about work eligibility.
• Audit Hiring and Employment Practices: Regardless of the EEOC’s notice, employers should continue to conduct regular audits of their hiring, promotion, and termination practices to identify and address any elements or patterns that could be perceived as discriminatory. Particular attention should be paid to any practices that may inadvertently favor or disadvantage American workers or individuals of certain national origins.
• Remain Compliant with Immigration Obligations: Employers who do hire foreign national workers should ensure they are fully compliant with any relevant immigration program requirements.
• While employers should be mindful of the EEOC’s materials, employers should remember that the agency’s guidance does not create any new legal obligations. Compliance should be grounded in the statutory requirements and relevant case law, rather than based solely on agency publications.

The EEOC’s recent focus underscores the need for vigilance in all aspects of employment decision-making. Employers should also be mindful of the EEOC’s agenda, which may reflect broader policy goals or a response to current events. However, the primary obligation remains compliance with existing law. Employers are encouraged to seek legal counsel when navigating complex situations, such as balancing immigration requirements with anti-discrimination obligations.