On November 19, 2025, the Equal Employment Opportunity Commission (“EEOC”) released a technical assistance document, “Discrimination Against American Workers Is Against The Law,” and updated its landing page on national origin discrimination.  This development reflects EEOC Chair Lucas’s focus on national origin discrimination and Anti-American bias and follows comments she made in January 2025 and February 2025 stating that “protecting American workers from anti-American national origin discrimination” is among the agency’s main priorities for compliance, investigations, and litigation. 

The technical assistance document and updated national origin discrimination landing page both cite to the existing prohibition under Title VII of the Civil Rights Act of 1964 on discrimination based on national origin and emphasize that this prohibition extends to discrimination against Americans.  It is important to note that the new materials do not change existing law under Title VII.  As we wrote in a prior blog post concerning “DEI-Related Discrimination at Work”, technical assistance documents do not have the force of law, do not constitute formal EEOC guidance, and are not meant to bind employers.  The release of this document instead signals a shift in the EEOC’s enforcement priorities related to Title VII, specifically a focus away from traditional bases of national origin discrimination involving unlawful preferences for U.S. workers and citizens to a focus on “anti-American bias” as a basis of national original discrimination. 

The technical assistance document includes a Q&A on “What Can Anti-American National Origin Discrimination Look Like?” and cites to several examples including:

• Discriminatory job advertisements that state that the employer prefers or requires applicants from a particular country or with a particular visa status, such as H-1B candidates
• Terminating American workers who are on the “bench” between job assignments at a much higher rate than employees who are visa guest workers
• Making it more difficult for applicants from one national origin to apply for positions, such as subjecting U.S. workers to more laborious application methods than H-1B visa holders during the PERM labor certification process

The technical assistance document further cautions that business justifications, such as customer or client preferences, lower costs of labor, or a belief that workers from certain national origin groups are “more productive”, do not excuse an employer’s decision to hire foreign workers over American workers.  The updated landing page states that “misconduct” involving national origin discrimination can violate laws other than Title VII, including the Immigration and Nationality Act, Immigration Reform and Control Act of 1986, and wage and hour laws.  

In light of this shift in EEOC enforcement priorities, employers should ensure they are continuing best practices to mitigate risk and ensure compliance:

• Review policies and practices: Confirm that policies and practices pertaining to recruiting, hiring, promotion, evaluations, compensation and benefits, work assignments, discipline and termination, and employee conduct do not unlawfully give preferences or otherwise unlawfully discriminate based on someone’s country of origin or accent, certain visa statuses, or citizenship.  Pay particular attention to processes intersecting with immigration programs, such as H-1B sponsorship, to avoid inadvertent bias.
• Document employment decisions: Maintain clear records of legitimate, non-discriminatory business reasons for employment decisions.
• Respond promptly to complaints: Investigate all discrimination and harassment complaints promptly and thoroughly, regardless of whether the complainant raises issues of anti-American bias or other forms of national origin bias.
• Protect against retaliation: Ensure robust protections for employees who report discrimination or harassment, regardless of whether they are alleging anti-American bias or another type of bias.
• Train managers and employees: Provide training on equal employment opportunity obligations and appropriate workplace conduct, with special emphasis on decision-making responsibilities for supervisors and managers.

If you have questions about programs and practices that may be implicated by the EEOC’s new technical assistance, please contact members of Covington’s employment practice group.