Editor's Note
Avoiding "Anti-American Bias"
The EEOC has said it is concerned about American employers with American employees discriminating against American employees because of "anti-American" bias.
The legal basis for this that Title VII, state anti-discrimination laws, and the Immigration and Nationality Act all say employers cannot make adverse employment decisions based on an applicant's or employee's national origin.
Human bias is often rooted in familiarity bias, which is that humans tend to favor people like them. We're wired that way. Familiar feels safe; unfamiliar is potentially unsafe. So we tend to notice things that are unfamiliar. While this tendency is real, it's not based on facts, qualifications, skills, experience, or any other legitimate nondiscriminatory business factor that supports legal employment decisions.
Here, the EEOC is concerned about employers discriminating against people who are like them because those people come from the same country as the employer, which happens to be the same country that everyone is in.
It doesn't make sense.
- Heather Bussing
The Trump administration’s focus on combating illegal immigration is now impacting the U.S. Equal Employment Opportunity Commission’s (EEOC) and potentially the U.S. Department of Justice’s (DOJ) focus on enforcing antidiscrimination laws. There is the potential that these two separate federal agencies will increase their focus on the investigation and enforcement of purported discrimination against Americans.
Quick Hits
- EEOC Acting Chair Andrea Lucas advised through a press release that the Commission plans to prioritize protecting Americans from “anti-American” bias.
- The Immigration and Nationality Act (INA), enforced by the DOJ, prohibits discrimination based on citizenship status, including U.S. citizens as a protected category.
- The EEOC’s guidance explains how claims brought under Title VII and the INA may intersect and which agency—the EEOC or DOJ—may ultimately investigate the respective claims.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on enumerated protected categories, including national origin. The U.S. Congress tasked the EEOC with enforcing antidiscrimination laws, particularly Title VII. In prior administrations, the EEOC’s focus has been on national origin discrimination for employees who identify with origins outside of America.
On February 19, 2025, the EEOC issued a press release wherein Acting Chair Andrea Lucas advised that the Commission would prioritize “protecting American workers from anti-American national origin discrimination.” According to the press release, to achieve this policy priority, the EEOC “will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers, as well as against staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers.” Notably, Title VII applies to employers with fifteen or more employees.
The Immigration and Nationality Act (INA) also prohibits discrimination, enumerating other protected categories based on citizenship status. Congress tasked the DOJ with enforcing this antidiscrimination statute. The DOJ’s Immigrant and Employee Rights (IER) section handles such investigations, which are known to be comprehensive.
In prior administrations, the IER traditionally focused on employment bias against foreign nationals as opposed to bias against U.S. citizens. The first Trump administration attempted to conduct more investigations into bias against U.S. citizens. In 2024, IER came under additional scrutiny by Trump supporters, alleging the section favored investigations into immigrant employees over citizen employees.
Under the second Trump administration, the section is expected to shift its focus to protecting U.S. citizens’ rights. Notably, the INA’s antidiscrimination provisions apply to employers with four or more employees. This difference from Title VII could potentially pave the way for aggrieved employees to bring claims against entities employing from four to fourteen employees.
The EEOC’s press release vaguely references collaboration with other federal agencies, including the DOJ. In light of the EEOC’s focus on anti-American bias in the workplace and the administration’s focus on U.S. citizens’ rights, these two laws—Title VII and the INA—and agencies may work together to increase the focus on any “anti-American” bias while also placing other forms of citizenship and/or national origin discrimination on the back burner.
Next Steps
In light of the EEOC’s press release, employers may want to review their internal policies to ensure they not only prohibit discrimination on the basis of national origin, but also citizenship status. Moreover, employers may want to remain focused on any guidance put forth by the EEOC or DOJ regarding the focus of their investigations in the coming months.
