Labor & Employment Developments Blog

In November 2025, the U.S. Equal Employment Opportunity Commission (EEOC) released a new technical assistance document titled “Discrimination Against American Workers Is Against the Law” and updated its webpage on the topic.  The new materials underscore the EEOC’s position that Title VII of the Civil Rights Act protects all workers from discriminatory conduct including American workers.  Further, the new release is consistent with the recent focus on perceived anti-American bias. 

In the release, the EEOC identifies several high-risk areas for potential violations. Job postings that express preferences for specific national origins or visa holders—for example, “H-1B preferred”—are unlawful. Likewise, disparate treatment in hiring, promotion, or application processes that makes it harder for U.S. workers to access opportunities may constitute discrimination. The materials also highlight pay disparities between visa workers and similarly situated American employees, harassment based on national origin, and retaliation against individuals who report discrimination as key enforcement priorities. The EEOC stresses that Title VII prohibits both unfavorable and favorable treatment based on national origin, including preferences for foreign workers.

The guidance further clarifies that Title VII’s protections apply across all terms and conditions of employment, including hiring, firing, job assignments, training, benefits, and layoffs. The EEOC warns that common employer justifications—such as assumptions about superior productivity, stereotypes about work ethic, or the desire to cut labor costs through lower wages—cannot be used to defend discriminatory practices. Illegal treatment may also arise from improper reliance on immigration-related processes, including the misuse of visa wage structures or informal pay arrangements.

Given the heightened scrutiny, employers are encouraged to review and update their policies, recruiting practices, compensation systems, and workplace conduct standards to ensure they do not favor workers of particular national origins or visa statuses. Organizations may also benefit from training hiring managers on nondiscriminatory practices, auditing decisions for disparate treatment indicators, and documenting objective, job-related criteria. The KMK Labor and Employment team will continue monitor developments, including any forthcoming EEOC guidance or enforcement activity, and is prepared to assist employers.