EEOC Highlights Discrimination Risks With New Anti-American Bias Guidance

The United States Equal Employment Opportunity Commission (EEOC) released educational materials on national origin discrimination and anti-American bias in November. The EEOC said its latest guidance intends to prevent discrimination against American workers and eliminate anti-American bias in employment practices. Employers should take proactive steps to minimize potential risks and make sure their policies and practices are in compliance.

National Origin Discrimination under Title VII

Under Title VII of the Civil Rights Act of 1964, employers cannot consider an employee or applicant’s protected characteristics, such as national origin, when making employment decisions. These include hiring, firing, pay, job duties, promotions, layoffs, training, benefits, and any other term or condition of employment.

National origin discrimination occurs when an employer’s action, in whole or in part, is motivated by whether an employee or applicant:

• Is from a particular country or area of the world
• Is or appears to be of a certain ethnicity

These still violate Title VII even if the employer’s perception is wrong.

The EEOC’s New Guidance on National Origin Discrimination and Anti-American Bias

The EEOC’s new materials include a one-page technical assistance document. It educates employers on anti-American bias and national origin discrimination.

These non-binding technical assistance materials clarify that Title VII protects all workers, including Americans. They note that employers can expect a multiagency enforcement approach from the EEOC, the Department of Justice and the Department of Labor.

The materials make clear that preferences for foreign workers, including preferring workers with a particular visa status, constitute unlawful national origin discrimination when the result is disfavored treatment of American workers. The materials also outline several recurring risk areas where national origin discrimination may occur:

• Discriminatory job advertisements: Discrimination against American workers may occur when job advertisements include preferences or requirements that an applicant be from a particular country or hold a particular visa status.
• Disparate treatment: 
  • • • Disparate treatment related to firing may occur when an employer terminates American workers who are on the “bench” between job assignments at a much higher rate than employees who are visa guest workers.
      • Disparate treatment related to hiring may occur when an employer makes it more difficult for American applicants to apply for a position by subjecting them to more laborious application methods than applicants who hold a different visa status.
• Harassment: Harassment against an American worker may occur when the worker is subjected to unwelcome remarks or conduct based on his or her national origin and those remarks or conduct meet one of the following factors:
  • • • They result in an adverse change to a term, condition or privilege of employment
      • They are so frequent or severe that a reasonable person would consider it intimidating, hostile or abusive.
• Retaliation: Retaliation against an American worker occurs when an employer retaliates against the worker because he or she has 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 technical assistance materials further provide that common business reasons do not justify national origin discrimination and do not excuse an employer’s decision to hire foreign workers over American workers. For example, customer or client preference, lower labor costs, including “under the table” pay or abuse of visa wage requirements, and beliefs that workers from one or more national origin group have a better work ethic than other national origin groups cannot be used as legal justifications for employment decisions that favor foreign workers over American workers.

An Employer’s Next Steps

Employers should assess their policies and practices and modify any policy or practice that favors workers of particular national origins or visa statuses. Specifically, employers should consider taking the following steps: 

• Review all policies and procedures relating to their recruiting and advertising content
• Review all policies and procedures relating to the application and selection processes of applicants
•  Review all policies and procedures relating to workplace conduct expectations
• Train their managers and recruiters on Title VII’s protections
• Conduct regular inspections for disparate treatment indicators
• Document all nondiscriminatory, job‑related reasons for employment decisions  

Please contact Abigail W. White or any member of the Phelps labor and employment team if you have questions or need advice or guidance.