EEOC to Crack Down on Anti-American Employment Bias

The U.S. Equal Employment Opportunity Commission (EEOC) will focus its national-origin bias enforcement on companies found to be showing a preference for hiring immigrant workers over U.S. citizens, the agency recently announced. 

“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,” said EEOC Acting Chair Andrea Lucas. “The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.” 

The agency said it will step up investigations, compliance checks, and litigation to achieve this goal. 

“Unlawful bias against American workers, in violation of Title VII, is a large-scale problem in multiple industries nationwide,” Lucas said. “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.” 

Shift in Interpretation

The EEOC’s stance on anti-American bias marks a notable shift from its usual interpretation of national-origin nondiscrimination.   

“Typically, the EEOC’s actions aim to prevent bias against historically marginalized groups, but this focus on anti-American discrimination signals an effort to ensure that U.S. citizens are not unfairly excluded from job opportunities due to an employer’s preference for hiring foreign workers,” said Emily Neumann, managing partner at Reddy Neumann Brown in Houston. 

Neumann said that employers who sponsor foreign workers on work visas must carefully navigate anti-discrimination laws to ensure compliance with both immigration and employment regulations. 

“This means that while employers may legally hire foreign workers through visa programs such as H-1B, L-1, or PERM-based sponsorship, they must avoid unlawfully preferring foreign workers over equally qualified U.S. workers,” she said. 

Compliance Recommendations

Neumann added that employers should: 

• Ensure that job postings and recruitment efforts do not improperly exclude U.S. workers. 
• Properly document the labor certification process, demonstrating that they have genuinely attempted to recruit U.S. workers before hiring foreign employees. 
• Ensure consistent pay and working conditions for both foreign and U.S. workers to prevent unfair labor practices. 

“This new policy could be particularly problematic in industries with historically large immigrant workforces, such as agriculture, construction, health care, hospitality and food service, and meat packing,” said Taylor Iaculla, an attorney in the Chicago office of Seyfarth. “If history is a guide, we can anticipate vigorous enforcement to back up this new direction, including lawsuits, highlighting a commitment to the administration’s concerns of ‘anti-American’ employment practices.”  

A recent settlement in Guam is an example of the EEOC’s shift in focus. In a Feb. 18 consent decree, LeoPalace Guam Corporation, which runs a hotel and resort in the U.S. territory, agreed to pay just over $1.4 million to resolve allegations that it provided less favorable wages, benefits, and conditions of employment to non-Japanese workers, including U.S. nationals, as compared to Japanese employees. LeoPalace contended that it could assert the rights of its parent corporation under a treaty between the U.S. and Japan, but the EEOC disagreed, stating that the company is a U.S. employer. 

Another example of what could get the agency’s attention is the basis for a lawsuit Meta is currently facing. The Facebook and Instagram parent company has been accused of preferring to hire foreign workers over U.S. citizens. The plaintiffs in that case cited statistics that 15% of Meta’s U.S. workforce holds H-1B visas for foreign guest workers, compared with 0.5% of the overall workforce. Meta, seeking a dismissal, said the allegations were baseless. 

“The EEOC’s announcement amplifies the Trump administration’s ongoing efforts to alter the legal landscape and reverses the EEOC’s prior, long-standing goal of protecting immigrant workers — a group the EEOC has historically designated as a vulnerable population,” said Andrew Scroggins, an attorney in the Chicago office of Seyfarth.   

“In light of these changes, employers are encouraged to conduct a privileged audit of their hiring and employment practices along with hiring data to ensure compliance with federal anti-discrimination laws,” he said. “Special attention should be given to policies that unlawfully favor, or appear to favor, non-American workers.”