EEOC’s Anti-American Bias Focus Will Test Scope of Title VII

The Equal Employment Opportunity Commission’s new enforcement push against anti-American employer practices is poised to test the limits of workplace anti-discrimination protections based on national origin.

EEOC Acting Chair Andrea Lucas, a Republican, recently pledged to “rigorously” enforce a key civil rights law against companies that show a bias for foreign workers, including visa holders, over US citizens. She called discrimination against American citizens a “large-scale problem,” aligning the commission’s priorities with the administration’s aggressive immigration agenda.

Pursuing cases of bias against American workers would apply Title VII of the 1964 Civil Rights Act in ways it hasn’t historically been used and that many attorneys say are unfounded. Making those claims is “certainly not what was intended when Title VII was enacted,” said Thomas Saenz, president and general counsel at the Mexican American Legal Defense and Educational Fund.

The EEOC declined to comment on how and in which sectors it will identify alleged anti-American bias.

But a federal jury’s 2024 decision that IT consulting giant Cognizant Technology Solutions discriminated against non-Indian workers could signal the kinds of employers the commission may train its sights on and offer a blueprint for litigation.

National Origin

There’s scant legal precedent of national origin protections covering bias against workers based on citizenship status.

Title VII includes national origin as a protected class, but not citizenship. A Reconstruction Era statute that did ban citizenship bias, Section 1981 of the 1866 Civil Rights Act, hasn’t traditionally been a tool for white American workers with discrimination claims.

However, an appellate court ruling reviving a bias case against Meta Platforms Inc. opened the door to new citizenship claims under Section 1981 by Americans. But using Title VII for an anti-American bias case would be a “new, creative way” of enforcing the law, said Kevin Johnson, a professor at UC Davis School of law.

The US Supreme Court’s 8-1 Espinoza v. Farah Manufacturing Co. ruling in 1973 found that the statute may prohibit citizenship-based bias where “it has the purpose or effect of discriminating on the basis of national origin.”

Espinoza alleged a company refused to hire a woman because of her Mexican citizenship, not American.

EEOC guidance from November 2016 cited the ruling and concluded that a place of origin is the more consequential factor in Title VII’s application.

In Lucas’ Feb. 19 announcement of the EEOC’s new enforcement priority, the commission highlighted a recent $1.4 million settlement in a case alleging a Guam hotel provided more favorable wages and benefits to Japanese employees over others, including former employees of “American origin.” Other settlements cited included alleged discrimination against Black workers in favor of foreign-born employees.

But the discrimination in those cases wasn’t “because they’re American,” it was “anti-Black racism,” said David Lopez, a professor at Rutgers Law School and EEOC general counsel when the lawsuits were filed.

Bringing a Case

Title VII may not outlaw citizenship bias, but if an employer favors workers of one national origin over all others in US jobs, the EEOC could investigate and sue, said Daniel Kotchen, a partner at Kotchen & Low LLP.

Kotchen’s firm won the 2024 Central District of California verdict against Cognizant, a top employer of H1-B visa holders, in a case alleging a pattern of discriminatory practices towards non-Indian workers. A Los Angeles jury said the company should pay punitive damages and compensation to employees who suffered harm as a result. An earlier bias case against the company in 2017 ended with a deadlocked jury.

The majority of workers employed on H-1B specialty occupation visas heavily used by IT firms come from India. That visa program, the subject of intense disputes between Trump supporters, was also targeted for scrutiny in a 2017 “Buy American and Hire American” executive order.

“Cognizant had relied heavily on the H-1B visa program to source Indian nationals for US positions,” Kotchen said. “Other employers that rely heavily on US visa programs, like the H-1B visa program, to favor only one nationality in U.S. jobs over all others could be the focus of future EEOC enforcement.”

The EEOC is a charge-driven agency. Although commissioners can initiate chargers, the vast majority of lawsuits it files each year are based on worker complaints, immigration and employment attorneys said.

Lucas’s announcement will hopefully lead more workers to bring claims of anti-American bias, said John Miano, of counsel at the Immigration Reform Law Institute. IRLI is the legal affiliate of the Federation for American Immigration Reform, which advocates for restricting employment of foreign workers.

It’s gratifying to see the EEOC focus on “such a major problem,” Miano said.

Enforcement Danger

Alleged bias in hiring practices has gotten big tech employers in trouble with enforcement agencies in the past.

The Justice Department secured multi-million dollar settlements with Meta and Apple Inc. under the Biden administration over claims they overlooked American applicants in the permanent labor certification process required to secure employment-based green cards.

Immigration attorneys said a new crackdown by regulators would likely zero in on those PERM violations. But many companies likely double-checked their own internal practices for green card sponsorship after the big tech settlements.

Jonathan Wasden, an attorney who represents H-1B workers and IT employers, said EEOC’s new priority is “a solution in search of a problem.” He said the commission should conduct an analysis to see if there are Americans who are willing and qualified to fill jobs held by foreign workers, he said. The Labor Department has never made such a finding, he added.

But finding a “smoking gun” proving bias may be difficult.

“I think it’s going to be hard to get a factual case that shows that there’s discrimination against Americans taking place,” Johnson of UC Davis said.