EEOC Issues National Origin Guidance for Employers

On Wednesday, November 19^th the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance guide for employers on National Origin Discrimination.

The one page document entitled "Discrimination against American workers is against the law" reminds American employers that “Title VII of the Civil Rights Act of 1964 protects employees or applicants from discrimination based on his or her national origin, including Americans. Title VII’s protections apply equally to all racial, ethnic, and national origin groups. National origin discrimination involves treating workers (applicants or employees) unfavorably or favorably because they are from a particular country or part of the world. National origin discrimination can include preferring foreign workers, including workers with a particular visa status, over American workers.”

EEOC Chair Andrea Lucas appears to be following through on the Commission’s promise to put employers “on notice,” as stated in a press release in February of this year, that if employment practices are “abusing our legal immigration system via illegal preferences against American workers, you must stop.”

The EEOC has promised “Increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers.”

Furthermore, Chair Lucas and the EEOC stated, “Unlawful bias against American workers, in violation of Title VII, is a large-scale problem in multiple industries nationwide. Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination. Cracking down on this type of unlawful discrimination will shift employer incentives, decreasing demand for illegal alien workers and decreasing abuse of the United States’ legal immigration system.”

The technical guidance gives examples to employers of what national origin discrimination might look like, including discriminatory job advertisements such as preferring applicants from a particular country or with a particular visa status, disparate treatment such as subjecting U.S. workers to more laborious application methods than H-1B visa holders, harassment based on national origin, retaliation by an employer based on a complaint of national origin, employment of certain visa holders with lower labor costs, and beliefs that certain national origin groups have certain work ethics or productivity levels.

The technical assistance comes at a busy time for the EEOC as Andrea Lucas was made Chair on November 6^th, completing her move from Acting Chair as designated in January of 2025, after previously being Commissioner to the EEOC as appointed by President Trump in his first term, in 2020. In addition, Commissioner Brittany Bull Panuccio joins Commissioner Kalpana Kotagal and Chair Lucas on the Commission, restoring the three-member quorum.

Key Action Items for Employers

Employers should take steps now to review their employment practices to ensure compliance with this new guidance. Some key steps employers should consider include:

1. Review and Revise Job Postings and Recruitment Materials

• Remove any language that prefers or discourages applicants based on national origin, citizenship, or visa status unless required by law. Examples to avoid: “H-1B candidates preferred” or “Ideal for OPT/CPT students”

• Ensure job advertisements focus on skills and qualifications, not national origin, birthplace, or immigration category.

2. Standardize Hiring and Screening Procedures

•  Audit recruitment pipelines to ensure U.S. workers and foreign workers experience the same application, interview, and screening process.

• Eliminate practices that impose extra steps, burdens, or slower processing for U.S. applicants compared to visa holders.

• Maintain objective, job-related rationales for hiring, promotion, and selection decisions.

3. Evaluate Labor Cost Practices

• Assess whether compensation practices inadvertently tie lower labor costs to specific national origin groups or visa categories.

4. Implement and Communicate Clear Policies Against National Origin Bias

• Update equal employment and anti-discrimination policies to explicitly prohibit discrimination and harassment related to national origin. Reaffirm that employees will not suffer retaliation for raising concerns.

5. Train HR and Hiring Managers on National Origin Discrimination

• Provide targeted training explaining that:

    o Title VII protects all national origin groups—including Americans.

     o Favoring foreign nationals or U.S. workers based on national origin is unlawful.

     o Stereotypes such as “workers from X country work harder” are banned under Title VII.

6. Audit Suppliers, Staffing Agencies, and Outsourcing Partners

• Ensure vendors are not recruiting or supplying workers based on national origin preferences, especially within industries flagged by EEOC (tech, agriculture, manufacturing, hospitality, etc.).

• Require contract partners to certify compliance with Title VII.

7. Conduct a Risk Assessment on Immigration-Related Practices

• Evaluate whether the organization:

     o Prioritizes foreign workers for perceived productivity or cultural attributes.

     o Relies heavily on visa programs for roles where qualified U.S. workers are available.

• Flag any high-risk practices for immediate correction.