The EEOC Issues New Guidance on National Origin Discrimination, Noting That Discrimination Against American Workers Is Against the Law

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Patricia Tsipras

November 24, 2025

The Equal Employment Opportunity Commission (EEOC) issued new guidance on November 19, 2025, regarding national origin discrimination, noting that anti-American employment actions are discriminatory.

Title VII of the Civil Rights Act of 1964 protects employees or applicants from discrimination based on national origin.  Employers engage in national origin discrimination when they treat employees or applicants differently (favorably or unfavorably) because they are from a particular country or part of the world.  National origin discrimination can include preferring foreign workers, including those with a particular visa status, over American workers.

The EEOC’s guidance offers examples of employment policies, programs, or practices that may be unlawful national origin discrimination:

1. Discriminatory job advertisements: A discriminatory job advertisement includes one stating that the employer prefers or requires applicants from a particular country or with a particular visa status (for example, “H-1B preferred” or “H-1B only”).
2. Disparate treatment in the terms, conditions, or privileges of employment: An example as to hiring includes an employer making it more difficult for applicants from one national origin to apply for positions (for example, subjecting U.S. workers to more laborious application methods than H-1B visa holders).
3. Harassment: Workplace harassment based on national origin may occur when an employee is subjected to unwelcome conduct based on national origin. Such conduct is illegal when it results in an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive.
4. Retaliation: It is illegal to retaliate against employees if they have engaged in protected activity, such as objecting to or opposing national origin discrimination at work, participating in employer or EEOC investigations, or filing an EEOC charge of discrimination.

The EEOC’s guidance also reminds businesses that the following “common business reasons” do not justify national origin discrimination:

1. Customer preference
2. Lower labor costs
3. Beliefs that workers from one national origin group possesses a better work ethic than another national origin group

Employer Takeaways
The EEOC’s guidance addresses anti-American decisions.  But Title VII prohibits discrimination against any national origin group.  Pro-American decisions also can violate Title VII.  The bottom line is that national origin – just like any other protected characteristic – cannot motivate your employment decisions.

This newsletter is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.