The EEOC is stepping up its investigation and enforcement efforts to protect American workers from Anti-American national origin discrimination. In an announcement this week from Acting EEOC Chair Andrea Lucas, Lucas stated that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin, including Americans, and “unlawful bias against American workers” is a large-scale problem affecting many industries. She noted that while companies may prefer hiring non-Americans to lower their labor costs, exploit rules around certain visa-based wage requirements, based on perception that foreign workers are more productive or have a stronger work ethic than Americans or due to customer preference, that none of these are legal reasons to favor foreign workers over American workers. The EEOC’s announcement also stated that the agency will be collaborating 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’s latest announcement comes on the heels of a recent announcement that the agency is rolling back the Biden administration’s “gender identity agenda” to focus on protecting women from sexual harassment and sex-based discrimination in the workplace. Acting EEOC Chair Lucas stated that one of her priorities for compliance, investigations, and litigation “is to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work” and that the agency has ended the use of the “X” gender marker during the intake process for filing a charge of discrimination and is removing materials promoting gender ideology on the Commission’s internal and external websites and documents. The EEOC’s shift away from gender identify is inconsistent with the U.S. Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII’s prohibition on sex discrimination and sexual harassment includes discrimination and harassment on the basis of sexual orientation and gender identity. Accordingly, individuals protected by Title VII can continue to file charges of discrimination with the EEOC relating to LGBT status under federal law, but it is unclear whether the EEOC will be bringing litigation relating to such claims, or instead will swiftly issue right to sue letters for such claims, which allows employees to bring suits in federal court directly.
Many state laws, including New York and New Jersey prohibit discrimination on the basis of sexual orientation and gender identity, so the EEOC’s shift in focus could likely mean more suits brought at the state level rather than based on federal law.
