“Anti-American” Bias in Hiring? The EEOC Says It’s Watching

Yesterday, I received an email from the U.S. Equal Employment Opportunity Commission that literally took my breath away.

The email contained a press release in which Andrea Lucas, Acting Chair of the EEOC, made it clear that the agency is cracking down on discrimination against American workers. Here is her warning shot:

“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.” 

Under Title VII of the Civil Rights Act of 1964, employers cannot discriminate based on national origin. This includes discrimination against American workers. In my 20+ years of practicing employment law, I’ve never had to defend an employer against such a claim, nor do I recall a colleague handling one.

How Common Are These Claims?

National origin discrimination isn’t a frequent allegation under Title VII. Last year, the EEOC received 8,266 charges related to national origin. That sounds like a lot, right? But, if you consider that the EEOC received 88,531 total charges, claims of national origin bias accounted for just 9%. Of those, only 1.5% resulted in a finding of reasonable cause. The EEOC filed six lawsuits last year involving national origin discrimination.

While EEOC statistics do not track national origin charges or lawsuits involving anti-American bias, the press release highlighted a “track record” of investigating and prosecuting anti-American bias. Since 2008, I’ve counted 17 enforcement actions—an average of about one per year.

What Should Employers Do?

To quote a Wall Street saying, “past performance is not indicative of future results.” Indeed, the EEOC just settled for $1.4M with a company that allegedly favored Japanese workers over non-Japanese workers, “including multiple former employees of American national origin.” While these claims may be uncommon, the EEOC’s stance is clear: preventing discrimination against American workers is now a priority. Consequently, employers must recognize that national origin discrimination, which includes showing preference for non-American workers, violates Title VII.

Employers should:

Train hiring managers to recognize biases, including preferences for foreign workers.
Review hiring practices to ensure they don’t disadvantage any protected class, including American applicants.
Be mindful of risky hiring decisions, such as:

• Prioritizing lower-cost foreign labor.
• Hiring based on customer preferences for non-American workers.
• Assuming foreign workers are more productive or have a stronger work ethic.

The bottom line? The EEOC is watching, and employers must ensure compliance with Title VII—regardless of which national origin is affected.