EEOC’s New Anti-American Bias Materials Reinforce National Origin Discrimination Risks

Quick Hits

• The EEOC issued a one‑page technical assistance document and updated its national origin landing page, both making clear that Title VII protects all workers—including Americans—and clearly stating potential business rationales do not justify national origin discrimination or anti-American bias.
• Job ads preferring visa statuses, disparate treatment in applications, assignments, or pay, and unlawful harassment or retaliation are identified as top risk and enforcement areas in the ongoing effort to protect Americans against national origin bias.
• The technical assistance document suggests employers can expect a multi‑agency enforcement approach from the EEOC, the Department of Justice, and the Department of Labor.

Understanding the EEOC’s Action

Title VII prohibits using protected characteristics as a factor in employment decisions unless narrow exceptions exist, such as a bona fide occupational qualification. Title VII’s prohibition on national origin includes treating applicants or employees unfavorably or favorably because they are from a particular country or part of the world, due to ethnicity or accent, or because they appear to be of a certain ethnic background, even if that perception is incorrect. The EEOC’s technical assistance document makes plain that preferences for foreign workers, including preferences tied to H1-B status, can constitute unlawful national origin discrimination when they result in disfavored treatment of American workers.

Title VII bars discrimination across all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, and any other term or condition of employment. The technical assistance materials highlight several recurring risk areas:

• Job advertisements that express preferences or requirements based on national origin or visa status (e.g., “H‑1B preferred” or “H‑1B only”) are unlawful.
• Disparate treatment can arise where employers make it meaningfully harder for U.S. workers to apply or advance compared to foreign visa holders, including through more burdensome application processes or materially different criteria.
• Pay discrimination includes paying visa guest workers less than similarly situated American workers without legitimate nondiscriminatory reasons.
• Harassment based on national origin is unlawful when sufficiently severe or frequent to create a hostile work environment, or when it results in adverse employment actions; harassment can be perpetrated by supervisors, coworkers, or even customers.
• Retaliation is prohibited when employers take adverse action because a worker opposed discrimination, participated in an investigation, or filed a charge with the EEOC.

The EEOC reiterates that common business justifications do not validate national origin discrimination. Customer or client preference, perceived productivity differences, “work ethic” stereotypes, or lower labor costs—including practices tied to off‑the‑books pay or misuses of visa wage requirements—cannot lawfully support employment decisions that favor one national origin group over another or that prefer foreign workers over American workers.

Next Steps

Employers may consider promptly assessing policies and practices that may favor workers of particular national origins or visa statuses over American workers. This includes reviewing recruiting and advertising content, application, and selection processes, pay practices for similarly situated workers, and workplace conduct expectations. Training managers and recruiters on Title VII’s even‑handed protections, auditing for disparate treatment indicators, and documenting neutral, job‑related criteria for employment decisions are important steps to mitigate risk. Where immigration‑related processes intersect with employment decisions, ensure coordination with all decisionmakers to avoid policies that create national origin–based disparities.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Immigration, and Workforce Analytics and Compliance practice groups will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Immigration, Employment Law, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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