Employers who utilize workers on visa programs, such as the H1-B visa program, have seen recent developments that have made the use of the program more complex. Adding to this complexity, the Equal Employment Opportunity Commission (EEOC) has recently released a technical assistance document, “Discrimination Against American Workers Is Against The Law,” highlighting that national origin discrimination includes discriminating against applicants or employees who are American. At the same time, the EEOC updated its national origin discrimination landing page with additional guidance and resources.
The EEOC is the federal agency that enforces federal workplace anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 which prohibits, in part, workplace discrimination based upon an applicant’s or employee’s national origin. According to the EEOC, their update reflects the state of the law, existing EEOC guidance and technical assistance documents, and Supreme Court precedent while providing a renewed focus on compliance efforts to prevent national origin discrimination.
In its technical assistance document, the EEOC highlights discriminatory hiring practices that may start with unlawful job advertisements. These may include ads expressing preferences or requirements that applicants be from a particular country or possess a specific visa status, such as an H-1B visa. Employers may also engage in national origin discrimination if they impose greater application hurdles on American workers than on visa holders. Employers should review their recruitment advertising and hiring practices to ensure a level, nondiscriminatory playing field for applicants regardless of national origin or any other protected class.
Employers also must be cautious about disparate treatment of existing employees if American workers are treated more negatively than visa holders — for example, in job assignments, promotion opportunities or layoff decisions. Employers who employ both American workers and visa holders should regularly review and audit employment decisions to confirm they are based on legitimate, business-related reasons and do not create the appearance of national origin bias.
Lastly, the EEOC cautions against specific business reasons, which may superficially justify a hiring or employment decision but would not justify national origin discrimination, including:
- Customer or client preference;
- Lower cost of labor related to either “under the table” payment or abuse of visa holder wage requirements; or
- Beliefs that workers from one or more national original groups are “more productive” or posses a better work ethic than another national origin group.
While the EEOC only enforces federal law, California’s Fair Employment and Housing Act (FEHA) similarly prohibits workplace harassment and discrimination based upon national origin for all employers with five or more employees.
Employers should always make hiring and other employment decisions based on objective, nondiscriminatory factors and should routinely audit their practices to identify potential bias involving national origin or any other protected class. When uncertain whether a decision could be discriminatory, employers should always consult with legal counsel.
Matthew J. Roberts, Associate General Counsel, Labor and Employment
CalChamber members can read more about National Origin Discrimination in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.
