Inside the Exclusive: The EEOC’s New Enforcement Priorities, Part 1—National Origin Discrimination

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Scott Kelly: Hello everyone, thanks for joining us. I’m Scott Kelly, a shareholder in the Birmingham office of Ogletree, and I’m joined today by Tae Phillips, a shareholder also in my office in Birmingham, and Jim Paul, who is in our St. Louis and Tampa office. We just wrapped up a session at the Labor and Employment exclusive event here at the Broadmoor property in Colorado Springs, Colorado, where we talked a bit about the EEOC’s enforcement priorities, and the Trump administration, and we spent a lot of time talking about the different priorities of Acting Chair Andrea Lucas. Those included the focus on national origin discrimination, religious discrimination, disability discrimination, gender identity discrimination, and some issues related to pattern and practice or systemic discrimination. We’re going to break each of those down on a different episode today, and we’re going to start off with Tae walking us through what he’s seeing from the EEOC in the way of national origin discrimination. Tae.

Tae Phillips: Yeah, thanks, Scott. If you want to know what you’re seeing, you can turn on the news, and you can probably figure it out pretty fast. We joked about that during our session. But kidding aside, this administration has obviously put a very heavy emphasis on this concept of anti-American discrimination, anti-American bias, and you’ve seen that in the news, right? Whether it’s in the immigration world, whether it’s in what Chair Lucas is saying, whether it’s what the talking heads are saying, it’s just not that difficult to decipher. But we were talking about our session yesterday, about how we have these laws, and there are two sides of the coin, on any of the protected classifications that fall within these laws, Title VII being a prime example, and even though historically the EEOC has put an emphasis on marginalized groups, there’s obviously now a shift towards the other side of that coin.
And so, national origin I think is one of the most interesting ones, and the one that we’re going to talk about now. So, let’s just start with the basics of Title VII, and what “national origin” means. So, most of this is pulled from the EEOC’s 1997 fact sheet that covers national origin discrimination. But national origin for purposes of Title VII means an individual’s country of birth, ancestry, or ethnicity. So, this could mean being a specific country, or ethnic lineage, or heritage, or a specific ethnic group, such as Hispanic individuals. And practically speaking, this is usually all rolled into the same thing, but really importantly, it includes being from the United States, which would include American ancestry. National origin also means language characteristics, native language, accents…again, native language could mean English. And so, with regards to national origin discrimination, this includes someone’s actual national origin or even perhaps their perceived national origin.
And again, even though we’ve historically thought of national origin discrimination involving claims involving minority groups or non-Americans, it certainly does include Americans. And during our session yesterday, we put some cases up on our slide that recognize the concept of national origin discrimination covering Americans, and all of those cases, in fairness, they all predated the Trump administration. So, this is certainly something that courts have recognized historically, and certainly a potential claim that has existed for a long time, but it’s just with this new administration and with the new focused on nationalism, and again, “anti-American bias,” there has been a heavier emphasis on that. And I think really one thing that is very indicative of what this administration is doing can be pulled, frankly, from the EEOC’s own website. So, on February the 19th, the EEOC issued a press release, it was called EEOC Acting Chair Vows to Protect American Workers from Anti-American Bias, that’s the title of the press release.
And so, as Scott mentioned earlier, the chair is Andrea Lucas, and so there was this press release that encompassed some of her quotes and some of her statements about this topic, and then also provided some other commentary in the press release, and I think it’s really impactful just to read it at face value because it does show this administration’s focus on this issue. And I’d like to just read some snippets from that press release because I think it’s probably from the horse’s mouth, right? And also, probably can show you even better than the three of us can, what the MO is for this administration. So, I’m just going to read some snippets from this. “The EEOC”—and again, this is from Chair Lucas. “The EEOC is putting employers and other covered entities on notice, if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop. The law applies to you, and you are not above the law. The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.” So, that’s a very heavily charged statement that makes it very clear in three sentences that this administration is going to put an emphasis on anti-American discrimination. And you saw some of the comments in there about immigration, obviously that’s been a hot topic, and it’s all sort of rolled into one, right? So, continuing on with some of the other things in the press release, the press release said, “The EEOC will help deter illegal migration, reduce the abuse of legal immigration programs by increasing enforcement of employment anti-discrimination laws against employers that illegally prefers non-American workers.”
Again, very heavily charged language there. And again, another quote directly from the press release and from Chair Lucas “Unlawful bias against American workers is a large-scale problem in multiple industries nationwide. Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers. Cracking down on this type of unlawful discrimination will shift employer incentives, decreasing demand for illegal alien workers, and decreasing abuse of the United States’ legal immigration system.” And so, not to beat a dead horse, but obviously there is some very, very facially obvious statements here, and it’s basically saying, just to decipher it in plain English, we’re going to protect American workers, and employers, you need to watch out for anti-American bias. In that same press release Chair Lucas, she pointed out some different “excuses” that the EEOC has identified as possibly being some reasons why companies favor non-American workers.
Lower cost labor, whether it’s due to payment under the table to illegal aliens, or exploiting rules around certain visa holder wage requirements, workforces that could be perceived as more easily exploited in terms of a particular group’s lack of knowledge, or access, or use of wage and hour protections, customer or client preferences, biased perceptions that foreign workers are more productive or have a better work ethic than American workers—these are some of the things that she pointed out as being these “excuses” of employers to utilize non-American workers. And look, maybe we look at this and we instantaneously think of certain industries, like agriculture, or construction, maybe food processing, or hospitality, and that’s certainly true, but I think it’s also really important to think about other industries that could be impacted, healthcare being one of them.
And we all saw last weekend the immigration issues that came down and the chaos with regards to the H1Bs, and this frantic rush to try and get people back into the country, And this potential $100,000 tab of utilizing H1Bs, and that doesn’t impact just your historically stereotypical industries that tend to use non-American workers, it certainly impacts some of your higher level workers, whether it’s tech companies, whether it is healthcare systems. So, this is an issue I think that could really impact employers across the board.

Scott Kelly: Tae, are you, kind of on that, I know one of the takeaways that we shared with our attendees yesterday was the importance of coordinating both your labor and employment practice at your organization with your business immigration practice, and of course, at Ogletree, we’ve got a really great business immigration group of lawyers that I know are staying on top of all of the recent developments in the H-1B space, so we’re thankful for that, to be informed of that. One of the things that I’m wondering is have you seen a recent spike in your practice for the clients that you serve, any charges that would have some of these types of issues in them? Can you speak to that?

Tae Phillips: Yeah. Yeah. So, it’s funny, right? So, I’ve been practicing law for…I’m a very young person, obviously. But practicing law for 15 years. And I think that before this administration rolled into office, I could count on one hand the number of majority group EEOC charges that I had dealt with, and a grand total of 0.0 anti-American bias type charges. And since the administration rolled into office in January, I’ve had, gosh, I lost count, seven or eight of these majority discrimination charges, I’ve got a half dozen on my desk right now. And they’re not all anti-American bias, but I do have one on my desk now that is an anti-American discrimination claim. Now, there’s also a, it’s brought by a white male American, so it sort of checks a lot of these boxes of the majority protection claims, but that’s one charge that’s on my desk right now.
And we settled one, gosh, about two months ago, that was an anti-American bias discrimination claim. And so, they’re out there, and I think charge filings are up across the board, particularly with these majority classifications and the anti-American bias across the entire country. And like I said yesterday to the audience, these laws have always existed, right? And these protections have always existed for these majority classification groups, but I think that in trying to stay somewhat in the middle of the road here politically, I think when you have all the chatter that’s happening around the country, just flipping on the TV and individuals seeing what the talking heads are saying, I think that you do have a lot of these majority groups who are having this light bulb moment of saying, oh, I get to file claims too?
And so, I think it’s partially that, I think it’s partially the fact that there is a lot of chatter about those protections, and I think it’s the EEOC making it very clear that those protections are going to be enforced and emphasized, and so a long answer to your short question, but yes, I’ve seen charges increase on all of the majority groups, but anti-American bias included, and like I said, I went 15 years with a total of none.

Scott Kelly: Right. Well, thanks for those great insights, and thank you all for joining us. Please join us again where Jim Paul is going to take us through the issues that we’re seeing unfold with the agency focusing in on religious liberty in the workplace.

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