Last week, the Equal Employment Opportunity Commission (“EEOC”) released new and updated educational materials on national origin discrimination, including a one-page technical assistance document titled “Discrimination Against American Workers Is Against the Law” and an updated national origin webpage.  These materials underscore that Title VII of the Civil Rights Act of 1964 protects all workers from national origin discrimination, including American workers.  The EEOC’s technical assistance reflects the current administration’s ongoing focus on immigration related issues and its concern that certain “employers have policies and practices preferring illegal aliens, migrant workers, or non-immigrant guest workers (guest worker visa holders) over American workers – in direct violation of federal employment laws.” 

Title VII Protections

Title VII of the Civil Rights Act of 1964 prohibits employers from discrimination in employment based on certain protected characteristics, such as national origin.  With respect to national origin discrimination, this means that employers may not treat applicants or employees more or less favorably because they are from a particular country or part of the world or belong to a particular ethnic group, or they appear to be so, or they have a particular accent or linguistic characteristics.

In November 2016, under the Obama administration, the EEOC issued comprehensive Enforcement Guidance on National Origin Discrimination. This guidance provides a detailed overview of Title VII’s prohibition on national origin discrimination as applied to a wide variety of employment situations, and includes several employer suggestions to help reduce the risk of national origin discrimination claims.  Some of the main areas underscored in the 2016 guidance include instructions to employers that:

  • Job postings, referral practices, and screening procedures cannot exclude or prefer people because of their national origin;
  • “English-only” rules and decisions based on accent must be justified by real business needs, not stereotypes;
  • Favoring citizens over non-citizens can sometimes overlap with national origin issues; employers must be careful to comply with both Title VII and immigration laws; and,
  • Slurs, jokes, or hostile comments about national origin, ancestry, or accent can create a hostile work environment if severe or pervasive.

The EEOC has not rescinded or replaced this 2016 guidance.

Newly Released EEOC Materials

The newly released materials are technical assistance and educational tools, not a new enforcement guidance. According to the EEOC’s announcement, the agency issued a one-page non-binding technical assistance document explaining national origin discrimination and emphasizing that Title VII protects Americans as well as foreign workers.  

For example, the EEOC’s updated materials note that job ads and recruiting practices can be a major risk area for discrimination against American workers, such as when an employer “prefers or requires applicants from a particular country or with a particular visa status (for example, ‘H-1B preferred’ or ‘H-1B only’).”  The EEOC also notes that discrimination can occur when a company has a pattern or practice of firing American workers who are on the “bench” between job assignments at a much higher rate than employees who are visa guest workers or when a company has a practice of making it more difficult for applicants from one national origin to apply for positions than others (for example, subjecting U.S. workers to more laborious application methods than H-1B visa holders during the PERM labor certification process). The EEOC cautions that an employers’ decision-making may nevertheless be discriminatory, even where the employer believes it is justified due to customer or client preference, economic reasons, or a belief that workers from one or more national origin groups are “more productive” or possess a better work ethic than another group.

Key Takeaways for Employers

From a legal standpoint the law did not change. Title VII’s prohibition on national origin discrimination is the same, and the 2016 Enforcement Guidance still explains how the EEOC interprets that law. The change is a refocus in EEOC priorities signaling increased interest in claims of anti-American bias and stereotyping.  The one-page fact sheet advises America workers how to recognize when they might have a claim and encourages them to contact the EEOC, which may drive more charges.  The new technical assistance includes a specific sentence “If you suspect you have experienced anti-American national origin discrimination, contact the EEOC promptly because there are strict time limits for filing a charge.”

In light of the above, now is a good time for employers to:

  • Review and update policies to ensure the anti-discrimination policies address national origin discrimination, in addition to all applicable protected categories;
  • Train human resources professionals and managers on recognizing discrimination issues, including national origin discrimination and underscoring that Title VII protects all workers;
  • Audit employment practices to ensure decisions are made in a non-discriminatory manner; and
  • Ensure compliance with all applicable laws, including immigration and non-discrimination laws when hiring foreign nationals.