Recent guidance from the Equal Employment Opportunity Commission (EEOC) makes it clear that national origin protections under Title VII of the Civil Rights Acts of 1964 protect American 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 nondiscriminatory criteria. The EEOC also updated its national origin discrimination homepage to highlight its stated 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 for non-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. Let’s take a closer look.
Examples of Unlawful Practices
According to the EEOC, employers violate Title VII in several ways.
Discriminatory job advertisements. Job postings or ads that prefer or require visa-holders (such as stating “H-1B preferred” or “H-1B only”) are illegal.
Disparate treatment. Any discrimination against applicants or employees in the terms, conditions, or privileges of employment based on their national origin is illegal. Examples of national origin discrimination aimed at American workers include terminating American workers who are on the “bench” (between job assignments) at a higher rate than foreign employees or making the application process more burdensome for American workers.
Harassment. Subjecting American 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 results in a hostile work environment violates Title VII.
Retaliation. Retaliating against individuals who file complaints, object to unlawful practices, file EEOC charges, or participate in employer or EEOC investigations related to national origin discrimination is illegal.
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 another.
Takeaways
The EEOC stated that it will enforce these protections for American workers, including actions that indicate “anti-American bias.” As such, consider taking the following steps:
- Review and audit job postings and recruitment information. Check for any language that may indicate certain visa-holders are preferred.
- Standardize hiring procedures. Use consistent criteria to hire both American and foreign workers.
- Establish neutral pay practices. Maintain nondiscriminatory practices in regard to compensation.
- Train HR personnel and managers. Provide training on national origin discrimination laws and ensure all hiring managers are aware of the updated guidance.
Brianna Hanson, an associate of The Kullman Firm, may be reached at brh@kullmanlaw.com. Martin J. Regimbal, a shareholder of The Kullman Firm, may be reached at mjr@kullmanlaw.com.