ANNOUNCEMENT: EEOC Acting Chair Vows to Protect American Workers from Anti-American Bias

WASHINGTON -- Today, U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas 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. The law applies to you, and you are not above the law. The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.”

Rigorously enforcing existing—but sometimes under-enforced—labor and employment laws is one key to shifting the economic incentives of businesses and workers. The EEOC will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers, as well as against staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers.

As previously announced, one of Lucas’s priorities for compliance, investigations, and litigation is protecting American workers from anti-American national origin discrimination.

“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. 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.”

Congress tasked the EEOC with enforcing federal employment antidiscrimination laws, like Title VII’s prohibition of national origin discrimination, which the agency does by investigating and, in some cases, suing private employers for Title VII violations. Additionally, the EEOC works collaboratively with other federal agencies such as the Department of Justice, the Department of Homeland Security, and the Department of Labor on labor and employment issues that overlap with immigration-related law enforcement. 

The EEOC has a track record of investigating and prosecuting unlawful discrimination against American workers, but according to Lucas, “Given the scale and scope of this unlawful discrimination, there is room for enhanced investigation and enforcement by the EEOC and in collaboration with other federal agencies.”

Under Acting Chair Lucas, the EEOC is committed to ensuring employers and workers better understand the even-handed protections provided to all workers by Title VII’s prohibition against national origin discrimination. Although Title VII’s national origin nondiscrimination requirement generally means that employers cannot prefer American workers, it equally means that employers cannot prefer non-American workers and disfavor Americans. 

“To help educate the public and deter unlawful conduct, it is important for the EEOC to cut to the chase when describing a frequent type of discrimination against which we repeatedly have taken enforcement action,” Lucas said. “For example, the agency frequently has recovered multi-million-dollar monetary awards for large multi-racial classes of black, white, and Asian workers in national origin discrimination cases. The common, but often unspoken, characteristic that tied these victims together? All were American workers.”

Employers have many excuses for why they may prefer non-American workers, but none of these are legally permissible reasons to violate Title VII:

• lower cost labor (whether due to payment under the table to illegal aliens, or exploiting rules around certain visa-holder wage requirements, etc.);
• a workforce that is perceived as more easily exploited, in terms of the group’s lack of knowledge, access, or use of wage and hour protections, antidiscrimination protections, and other legal protections;
• customer or client preference;
• biased perceptions that foreign workers are more productive or have a better work ethic than American workers.

“The law is clear: the prohibition on national origin discrimination applies to any national origin group, including discrimination against American workers in favor of foreign workers,” said Lucas. “The EEOC is going to rigorously enforce the law to protect American workers from national origin discrimination.”

The EEOC is the sole federal agency authorized to investigate and litigate against businesses and other private sector employers for violations of federal laws prohibiting employment discrimination. For public sector employers, the EEOC shares jurisdiction with the Department of Justice’s Civil Rights Division; the EEOC is responsible for investigating charges against state and local government employers before referring them to DOJ for potential litigation. The EEOC also is responsible for coordinating the federal government’s employment antidiscrimination effort. More information about the EEOC is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

It is significant for the EEOC to signal an aggressive enforcement posture to unscrupulous employers. The most important language in this announcement is the reference to cooperation and coordination with DOJ and DHS immigration enforcement partners. 

Generally, this is a positive announcement, but curiously this announcement does not actually commit EEOC to prioritize investigations and punishments for employers discriminating against American workers. It is a logical inference from the statement that investigations of this sort are a priority, however, technically there is no explicit policy commitment to do anything new or different than current policy and practice.