The Equal Employment Opportunity Commission issued new guidance outlining what it considers prohibited examples of “anti-American” discrimination.
Why it matters: The EEOC could target for enforcement employers that significantly rely on foreign talent as part of the Administration’s broader campaign against immigrants and foreign workers.
The guidance: Title VII of the Civil Rights Act prohibits discrimination on the basis of national origin, which the EEOC’s new guidance emphasizes also includes “anti-American discrimination.” According to the guidance, such discrimination can include:
-
Preference for foreign workers (over American workers), including those with particular visa statuses (such as H-1Bs)
-
Discriminatory job advertisements specifying “H-1B preferred” or “H-1B only”
-
Imposing stricter job application requirements on U.S. workers as compared to H-1B visa holders during the permanent labor certification process.
The guidance also emphasizes that neither lower labor costs nor customer or client preferences justify anti-American discrimination.
The bottom line: The guidance is non-binding and does not change the law. Regardless, employers can expect increased EEOC scrutiny of practices that the Commission views as favoring foreign talent over American workers.
What’s next: With the end of the government shutdown and a new quorum in place, the EEOC is moving quickly on an agenda that includes a continuation of the Administration’s campaign against DEI initiatives as well as stepped-up enforcement of perceived religious and anti-American discrimination.
