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.

Tags: EEOC
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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with…

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with white collar colleagues to conduct culture assessments, internal investigations of executive misconduct, and civil rights and racial equity audits and assessments. Lindsay has been at the forefront of the changing workplace issues impacting employers in the U.S. in the last decade, including #MeToo, Covid-19, and the renewed focus on diversity, equity, and inclusion. She frequently advises employers in relation to their processes and procedures for investigating complaints of discrimination, harassment, and retaliation and trains executive teams and board members on culture risk and the lawful implementation of DEI programs.

Lindsay also guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

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Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

As a senior member of Covington’s Institutional Culture and Social Responsibility Practice Group, Carolyn has co-led significant investigations into workplace culture, DEI issues, and reports of sexual misconduct and workplace harassment.

As an employment lawyer with over two decades of experience, Carolyn focuses on a wide range of compliance and regulatory matters for employers, including:

Conducting audits regarding employee classification and pay equity
Advising on employment issues arising in corporate transactions
Strategic counseling on a wide range of issues including discrimination and harassment, wages and hours, worker classification, workplace accommodations and leave management, performance management and termination decisions, workplace violence, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies
Drafting employment contracts and offer letters, separation agreements, NDAs, and other employment agreements
Advising on employee privacy matters, including under the California Consumer Privacy Act
Providing guidance on use of AI in the workplace and development of related policies
Leading anti-harassment and other workplace-related trainings, for employees, executives, and boards

Carolyn also works frequently with the firm’s white collar, privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups.

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Photo of Alex Thomson Alex Thomson

Alex Thomson is an associate in the firm’s Washington, DC office and is a member of the White Collar Defense and Investigations and Institutional Culture and Social Responsibility Practice Groups. He has extensive experience conducting civil rights and racial equity assessments for leading…

Alex Thomson is an associate in the firm’s Washington, DC office and is a member of the White Collar Defense and Investigations and Institutional Culture and Social Responsibility Practice Groups. He has extensive experience conducting civil rights and racial equity assessments for leading corporations, investigating workplace cultural issues including reports of misconduct, harassment, and discrimination, and advising clients on the lawful design and implementation of diversity, equity, and inclusion processes and practices.

Alex also advises clients responding to high-profile investigations before the Department of Justice that entail significant legal and reputational risks. His practice focuses on white collar criminal defense and government and internal investigations.

Alex serves on the Board of Directors for the Joint Distribution Committee (JDC), the leading global Jewish humanitarian organization. Prior to joining Covington, Alex served as a law clerk to the U.S. House Committee on the Judiciary and was a fundraiser for the Jewish Federation of Boston. He also has served on national finance committees for two presidential campaigns.

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