EEOC Guidance Makes Anti-US Bias an Enforcement Priority
The U.S. Equal Employment Opportunity Commission (EEOC) has released updated educational materials on national origin discrimination, including a new technical assistance document titled “Discrimination Against American Workers Is Against the Law.”
Under Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate against people based on race, color, sex, national origin, or religion — collectively known as protected characteristics.
Earlier this year, then-acting EEOC Chair Andrea Lucas stated, “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.”
For HR professionals, the issuance of the technical assistance document is a continuation of Lucas’ earlier statements concerning how the agency is prioritizing the enforcement of national origin discrimination under Title VII — even though the underlying law has not changed.
According to Carolyn Rashby, an attorney with Covington & Burling in San Francisco, the new materials indicate that “the nonbinding technical assistance document and webpage changes signal a shift in EEOC priorities, with a new focus on prohibiting national origin discrimination in the form of anti-American bias or favoring immigrant workers.”
She noted that this emphasis is unusual compared with past enforcement actions, adding that “we haven’t previously seen this focus, largely because, in most U.S. workplaces, anti-American bias hasn’t been an issue. Historically, we’ve seen many more charges and cases involving discrimination based on national origin or ethnicity that arise from preferences for U.S. workers and citizens.”
Focuses of New Enforcement
The technical assistance document reflects a change in agency attention from the prior administration, but the legal framework remains the same.
"It’s important to keep in mind that there’s been no change in the law," Rashby said. "Title VII has always prohibited bias in employment on the basis of national origin." Rather, what has changed are the EEOC’s enforcement priorities. The agency has indicated that discrimination against U.S. workers will be an enforcement focus.
This means employers may need to review policies and practices that previously would not have raised red flags. For instance, hiring or promotion processes favoring certain visa holders — or job postings that inadvertently imply such preferences — could now draw closer examination.
Rashby said this shift makes it essential for HR to ensure that “workplace policies, procedures, and practices do not unlawfully give preferences based on or otherwise unlawfully discriminate based on someone’s country of origin, certain visa statuses, citizenship, or someone’s accent.” She added that these issues are particularly relevant “where employment decisions meet immigration procedures, including for companies that use H-1B workers.”
Reinforcing Core HR Practices
The updated materials also underscore the need for consistent handling of complaints and documentation.
Rashby advised that HR should “continue to take all discrimination and harassment complaints seriously and take prompt steps to investigate, regardless of whether the complaint raises issues of anti-American bias or other bias.”
Further, she emphasized the importance of strong anti-retaliation safeguards. “HR should ensure retaliation protections for anyone who reports workplace discrimination or harassment," she said, "regardless of whether they’re alleging anti-American bias or bias on another basis.”
Documentation remains a critical component of defending employment decisions. According to Rashby, HR must ensure “the company is consistently documenting the legitimate nondiscriminatory business reasons for employment decisions.”
Training is another area where HR should review and update as necessary. Rashby recommended that HR focus on workplace training around lawful and appropriate conduct for all employees. Supervisors and managers should likewise receive training on their obligations when making employment decisions to ensure equal employment opportunity for all.
Potential Vulnerabilities for Diverse Workforces
The EEOC’s updates also highlight subtle risks that may arise in organizations employing a mix of U.S. workers, foreign-born workers, and visa holders.
Rashby explained that the new educational materials “highlight some possible blind spots that could result in unlawful national origin discrimination.” These include job postings that “may express a preference for H-1B candidates,” project-assignment structures that lead to H-1B workers spending less time “on the bench,” and employment decisions influenced by “beliefs or stereotypes that employees from particular national origin groups or ethnic backgrounds work harder or are more productive.”
These examples underscore how both “positive” and “negative” stereotypes can contribute to unlawful decision-making, especially in industries for which visa holders play a significant role.
What HR Should Do Now
For HR professionals, the EEOC’s revised materials present an opportunity to revisit policies, training, and communications. Reviewing job descriptions and postings for unintended preferences, auditing assignment practices, and reinforcing neutral, job-related criteria in promotion and performance processes are key steps in mitigating risks.
Ultimately, while Title VII remains unchanged, the EEOC’s updated technical assistance makes it clear that national origin discrimination can take multiple forms. HR professionals must be vigilant in addressing all of them.
Source(s):
Zheliabovskii, R. (2025). EEOC Guidance Makes Anti-US Bias an Enforcement Priority. Shrm.org. https://www.shrm.org/topics-tools/employment-law-compliance/eeoc-guidance-makes-anti-us-bias-enforcement-priority
U.S. Equal Employment Opportunity Commission. (2024). National Origin Discrimination | U.S. Equal Employment Opportunity Commission. Www.eeoc.gov. https://www.eeoc.gov/national-origin-discrimination