After finally reaching a quorum after many months of inactivity, the U.S. Equal Employment Opportunity Commission (EEOC) is shifting to focus on what it refers to as “anti-American” bias. In December, EEOC chair Andrea Lucas posted a video on social media expressing an interest in hearing from white males experiencing race or sex discrimination in the workplace. A tutorial on anti-American discrimination and its various forms is now featured prominently on the EEOC website.
In response, EEO Leaders, a group comprised of many former EEOC top officials, criticized the EEOC’s shift in focus as “a concern lacking empirical support.” The group emphasized that the EEOC should be using its limited resources to combat well-documented forms of workplace discrimination.
Employment attorneys are waiting to see how the EEOC’s new enforcement priorities play out. Some labor and employment attorneys have advised clients who may be terminating employees or considering a reduction in force to explore whether the proposed actions would have a disproportionate effect on certain groups of workers who are white, heterosexual, and/or born in America. While employers should still examine the overall impact on protected classes and other groups who have more traditionally been the targets of employment discrimination, the EEOC’s focus shift could now involve other groups as well.
Given the percentage of foreign workers they employ and their prior targeting of DEI initiatives and gender-affirming care, healthcare employers may be a logical focus for the EEOC. In fact, any entity that employs foreign-born workers is likely to face increased scrutiny. Not only does the EEOC monitor H-1B non-immigrant visa programs, but so do other federal agencies, including the Department of Justice’s Civil Rights Division and the Department of Labor. As a result, any employer using this program must ensure they do not express bias against American workers.
Lucas has reiterated the need to focus on anti-American workplace bias since she joined the EEOC in 2020, and the agency has already brought such claims against some entities. For example, Guam paid $1.4 million to resolve EEOC allegations that it provided better wages, benefits, and working conditions to Japanese workers than to American workers. Likewise, a Mississippi farm paid $150,000 in response to an EEOC claim that it was giving preferential treatment to foreign-born workers over Black American workers.
Historically, the EEOC has developed priorities after consulting diverse stakeholders from communities, businesses, advocacy groups, and its own staff. In contrast, the adoption of a focus on anti-American bias has trickled down from the executive branch, not from any pertinent stakeholders. While anti-American and anti-white discrimination exists to some degree, making it a major priority is a huge deviation from the agency’s past practices and likely to take away from other types of cases.
The purpose of the EEOC at its inception was to enforce Title VII of the Civil Rights Act of 1964 and to fight discrimination against Black Americans. Later on, courts found that the broad language of the statute also covered discrimination based on gender identity and sexual orientation. The agency’s renewed focus on discrimination against white Americans calls into question whether the Trump administration believes that anti-Black sentiment no longer exists.
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