The Equal Employment Opportunity Commission (EEOC) recently issued a one-page technical assistance document titled “Discrimination Against American Workers Is Against the Law” and concurrently updated its national origin discrimination landing page to emphasize protections for individuals who are natural-born or otherwise identify as “Americans.” This guidance emphasizes that while national origin discrimination traditionally concerns favorable or unfavorable treatment based on an individual’s country of origin, ethnicity, accent, or perceived ethnic background (even if incorrect), addressing anti-American national origin bias is also a priority.
The updated landing page states that Title VII protects all workers, "including Americans," and expressly provides that national origin discrimination can include "preferring foreign workers, including workers with a particular visa status, over American workers." It further explains that such discrimination may occur even when the affected employee and the individual allegedly engaging in discrimination are of the same national origin. The technical assistance document also offers examples of specific circumstances that may implicate this new guidance on national origin discrimination, including:
- Using discriminatory job advertisements, such as those that include the employer's preference for or requirement of applicants from a particular country or with a particular visa status (e.g., "H-1B preferred" or "H-1B only").
- Terminating American employees who are on the "bench" between job assignments at a higher rate than employees who are visa guest workers.
- Requiring American workers to participate in more burdensome application processes than H-1B visa holders during the PERM labor certification process.
- Allowing the harassment of employees based on their national origin, accent, or ethnicity, through unwelcome remarks or conduct.
- Retaliating against an employee who engaged in protected activity under Title VII, such as objecting to or opposing national origin discrimination at work, participating in employer or EEOC investigations, or filing an EEOC charge.
The EEOC clarifies that customer or client preference, lower labor costs, or subjective beliefs that workers from one national origin group are "more productive" or possess a better work ethic than other national origin groups do not justify an employer's decision to hire foreign workers over American workers.
The Bottom Line
Over the past several years, employers have seen a growing number of lawsuits filed by white employees alleging discrimination after being denied promotions or selected for layoffs while non-white employees were promoted or retained. Given the publicity surrounding the issuance of this non-binding guidance, employers may anticipate an increase in EEOC charges filed by employees raising claims alleging discrimination based on their status as an “American.”
It is critical that employers take all discrimination complaints—regardless of the employee’s race, ethnicity or national origin—seriously and promptly and thoroughly investigate the claims in accordance with the employer’s established policies and procedures. Good documentation and recordkeeping practices should also be utilized.
