Updated EEOC Guidance Clarifies Protections for American Workers
The Equal Employment Opportunity Commission recently issued a one-page “technical assistance” document regarding national origin discrimination, highlighting that national origin discrimination includes discriminating against applicants or employees who are American.
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Simultaneously, the Commission updated its website’s national origin discrimination landing page to provide information about “what national origin discrimination can look like in the workplace” and to provide employees with guidance on how to obtain EEOC assistance if they feel they have been discriminated against. These materials emphasize that Title VII of the Civil Rights Act of 1964 protects all workers from national origin discrimination and that there is no justification for such bias in the workplace. Indeed, the technical assistance document, entitled “Discrimination Against American Workers is Against the Law,” emphasizes that potential business rationales do not justify national origin discrimination or “anti-American” bias. The guidance explicitly states, “National origin discrimination can include preferring foreign workers, including workers with a particular visa status, over American workers.” The materials highlight the following “risk areas” that can constitute unlawful national origin discrimination:
- Job advertisements that express preferences or requirements based on national origin or visa status.
- Making it “more difficult” for applicants from one national origin to apply for a position, including “subjecting U.S. workers to more laborious application methods than H-1B visa holders.”
- Terminating American workers who are on the “bench” between job assignments at a much higher rate than employees who are “visa guest workers,” such as workers on H-1B visas and H-2A visas.
The EEOC reiterates that it is not an excuse to “hire foreign workers over American workers” based on customer preference, lower cost of labor or the “belief[] that one or more national origin groups are ‘more productive’ or possess a better work ethic than another national origin group.”
In response to this guidance, employers should review their recruiting and advertising content, application and selection processes, as well as pay practices, to ensure they do not favor workers of particular national origin or visa status. In addition, employers should conduct training of HR professionals and managers and emphasize that all nationalities are protected from discrimination. For example, companies should ensure their I-9 process is standardized and consistently verifies all employees’ work eligibility. When uncertain about whether a decision could be discriminatory, employers should consult with legal counsel. Klehr Harrison’s Labor and Employment Group keeps abreast of changes in the law and is available to its clients whenever needed.
Co-author Lee Moylan, chair, and Stephanie Wolbransky Fenster, associate, are members of the labor & employment practice group at Klehr Harrison.