Recent guidance from the Equal Employment Opportunity Commission (“EEOC”) makes it clear national origin protections under the Title VII of the Civil Rights Acts of 1964 (“Title VII”) protect United States workers. In a one-page guidance document, the EEOC emphasized that federal law prohibits employers from favoring foreign workers to the detriment of American workers, based on national origin — as opposed to non-discriminatory criteria. The EEOC also updated their National Origin Discrimination homepage to highlight its emphasis on investigating anti-American treatment in the workforce. These changes appear to be in response to the current administration’s view that some employers are abusing the immigration system via illegal preferences against American workers.

As the EEOC focuses its attention on anti-American hiring and treatment in the workplace, employers should examine their employment practices to prevent unintentional discrimination.

Examples of Unlawful Practices:

According to the EEOC, employers may violate Title VII in several ways:

1. Discriminatory Job Advertisements

Job postings or ads that prefer or require visa-holders (such as “H-1B preferred,” “H-1B only”).

2. Disparate Treatment: Any discrimination against applicants or employees in the terms, conditions, or privileges of employment

Terminating American workers that are on the “bench” (between job assignments) at a higher rate than foreign employees.

Making the application process more burdensome for U.S. workers.

3. Harassment

Subjecting U.S. workers to unwelcome remarks related to their national origin, where that harassment results in an adverse change to a term, condition, or privilege of employment, or it results in a hostile work environment.

4. Retaliation

Retaliating against individuals who file complaints, object to practices, file EEOC charges, or participate in employer or EEOC investigations, related to national origin discrimination.

The EEOC guidance makes clear that business justifications do not justify discrimination based on national origin, including customer or client preferences, lower cost of labor, or beliefs that one group is more productive than the other.

Best Practices for Employers:

The EEOC stated that it will enforce these protections for American workers, including actions that indicate “anti-American bias.” As such, it is suggested that employers:

1. Review and audit job postings and recruitment information.

Check for any language that may indicate that certain visa-holders are preferred.

2. Standardize hiring procedures.

Use consistent criteria to hire both U.S. and foreign workers.

3. Establish neutral pay practices.

Maintain nondiscriminatory practices in regard to compensation.

4. Train human resources personnel and managers.

Provide training on national origin discrimination laws and ensure all hiring managers are aware of the updated guidance.

If you or your organization have questions about the EEOC’s guidance or want assistance in interpreting how these rules apply to your employment practices, please reach out to a Kullman attorney.