EEOC Issues Guidance on Anti-American National Origin Discrimination Under Title VI

The Equal Employment Opportunity Commission (EEOC) has released new guidance clarifying that Title VII of the Civil Rights Act of 1964 protects American workers from national origin discrimination, just as it protects individuals of all other national origins.

The guidance reinforces that employers may not favor or disadvantage applicants or employees based on national origin, including preferences for foreign workers or workers with specific visa statuses, when making employment decisions.

Key Takeaways

• Title VII’s national origin protections apply equally to American workers and U.S. citizens.
• Employers may not prefer foreign workers or visa holders over American workers for discriminatory reasons.
• Job advertisements, hiring practices, terminations, and workplace conduct may all trigger liability.
• Common business justifications, such as lower labor costs or customer preferences, do not excuse discrimination.
• Employers may face EEOC investigations and litigation for alleged noncompliance.

What Is National Origin Discrimination?

National origin discrimination occurs when an employer makes employment decisions motivated, in whole or in part, by where a person or their ancestors are from, or by a person’s perceived national origin.

The EEOC emphasizes that Title VII applies equally to all racial, ethnic, and national origin groups, including Americans.

Examples Identified by the EEOC

The guidance highlights several employment practices that may constitute unlawful anti-American national origin discrimination:

Discriminatory Job Advertisements
Employers may not publish job postings that express a preference for applicants from a particular country or with a specific visa status, such as “H-1B preferred” or “H-1B only.”

Disparate Treatment
Unlawful discrimination may occur in hiring, firing, compensation, job assignments, training, promotions, demotions, or benefits. Examples include:

• Terminating American workers at higher rates than visa workers when employees are between assignments
• Subjecting U.S. workers to more burdensome application processes than visa holders

Harassment
Unwelcome remarks or conduct based on national origin may be unlawful when severe or pervasive enough to create a hostile or abusive work environment or adversely affect employment conditions.

Retaliation
Employers may not retaliate against individuals who oppose national origin discrimination, participate in internal or EEOC investigations, or file a charge with the EEOC.

Business Reasons That Do Not Justify Discrimination

The EEOC makes clear that the following are not lawful justifications for preferring foreign workers over American workers:

• Customer or client preference
• Lower labor costs
• Stereotypes that certain national origin groups are more productive or have a stronger work ethic

How KM&M Can Help

If you would like to discuss how this EEOC guidance may affect your organization, we invite you to speak with an attorney in KM&M’s Employment Law practice.