Is Anti-American Bias a Type of National-Origin Discrimination?

Last month, in a press release that attracted little attention, Acting Chair of the EEOC Andrea Lucas stated that the EEOC would be vigilant about "anti-American bias" where employers were "illegally prefer[ring] non-American workers." Lucas stated, "The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers."

The press release went on to identify the following common "excuses" for employers preferring foreign labor (the bullets are a direct quote from the release):

• lower cost labor (whether due to payment under the table to illegal aliens, or exploiting rules around certain visa-holder wage requirements, etc.);
• a workforce that is perceived as more easily exploited, in terms of the group’s lack of knowledge, access, or use of wage and hour protections, antidiscrimination protections, and other legal protections;
• customer or client preference;
• biased perceptions that foreign workers are more productive or have a better work ethic than American workers.

As a first impression, the first two reasons don't seem like anti-American bias as much as they do exploitation of immigrant labor--so Lucas's framing is odd, but perhaps instructive of what the Trump EEOC cares about. 

As for the law, this raises several questions, but here are two that struck me immediately:

(1) Is it right that "anti-American bias" counts as "national origin" discrimination, per Title VII?

(2) Are the common reasons that employers prefer immigrant labor ones that count as unlawful "anti-American bias"?

On the first question, there's a difference between "nationality" and "national origin." Professor Dorf has explained this in the context of refugee resettlement and comparing DACA and the travel ban litigation. In short, nationality refers to an individual's citizenship in a particular country (or countries), while national origin refers to the country (or countries) from which an individual or their forebears came. 

When Lucas refers to "anti-American bias" it sounds like she is referring to discrimination against individuals for having U.S. citizenship--a claim about nationality. So prima facie it would not seem like this involves "national origin" discrimination. Indeed, the EEOC website discusses the laws against discrimination based on citizenship as situated in the the Immigration Reform and Control Act of 1986 (IRCA)--not Title VII. 

But that's how it seems at first glance. One question is whether the Supreme Court's "but-for" analysis in Bostock might have any bearing on this question. I think it might. Recall, in that case, the Supreme Court held that discrimination based on an individual's sexual orientation (or based on transgender status) counted as discrimination "because of" on an individual's "sex," for purposes of Title VII. The Court acknowledged that sexual orientation and sex were different things. However, the Court employed a "but for" counterfactual to show the requisite causal relationship. That directs us to change the relevant feature and inquire whether that changes the result. If it does, we have the "but for" relationship that satisfies whether the discrimination is "because of" the relevant feature, per the language of Title VII. In Bostock, the Court applied the test thusly: If Gerald Bostock--a man who was attracted to men--were a woman who was attracted to men, (counterfactually) she would not have been fired. Hence, but for Gerald Bostock's sex, he would not have been fired--and that's sex discrimination in violation of Title VII.

In other work, with Mitchell Berman, and writing solo, I have questioned this but-for analysis. I won't rehash that here. But I do observe that the Court's but-for Bostock analysis may mean that, in the appropriate case, nationality discrimination does count as "national origin" discrimination. First note that in Espinoza v. Farah Manufacturing Co., the Supreme Court stated that "[t]he term ‘national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." (emphasis added).

So, let's focus on place of birth. And let's assume that a person, Adam, is not hired because of their foreign nationality--because they are not a U.S. citizen. Given birthright citizenship--which at the time of writing is still a thing--it's fair to assume that Adam was not born in the United States. With all that in mind, let's run the counterfactual changing Adam's place of birth: Had Adam been born in the United States, he would be eligible for birthright citizenship, and assuming nothing else (like that he rejected such citizenship or something) he would be a U.S. citizen. Based on the premise of the hypothetical, he would have been hired. So, in such a case, the employer's discrimination against Adam based on his nationality bears a "but-for" relationship with his place of birth--what the Supreme Court has told us is part of "national origin." Thus, in such a case, discrimination against Adam is "because of" his "national origin." 

Things are a bit murkier when the person is discriminated against because they are a U.S. citizen. Suppose Barry was born in the United States to parents who are U.S. citizens (and is thus clearly an American citizen)--and is not hired for reason of his U.S. citizenship. If we change Barry's place of birth to outside the United States--and change nothing else, as the 'but for' test provides--well, he's still a citizen. And presumably he remains not hired. So in this case, place of birth is not a but-for cause of his rejection. And he doesn't have a clear "national origin" discrimination claim for any other reason (e.g., we could similarly change where his ancestors came from, and he would still be a citizen and thus not hired).

The conclusion seems a little odd. When foreign nationals are discriminated against due to their nationality, that might be national origin discrimination, but when American nationals are, it is seemingly not. Yet that's what Bostock-type but-for analysis may deliver (here, because of the asymmetry resulting from birthright citizenship).

This takes us to the second set of questions about whether the common reasons that employers favor foreign workers are unlawful discrimination. Recall those reasons: (a) lower cost labor; (b) a more easily exploited workforce; (c) customer/client performance; and (d) biased perceptions about productivity/work ethic.

The last reason seems like it is anti-American bias; whether it constitutes cognizable discrimination will be fact-sensitive. The third reason just launders customer/client preferences, and that will depend on their reasons.

The first two reasons involve some complexity. As noted, I don't think this evinces anti-American bias as much as it does a desire to exploit workers who have liminal status. 

As the EEOC stated it, the lower cost labor rationale seems wrongful, because it involves other legal violations, like paying people under the table. But let's consider a different kind of case: Suppose it turns out that foreign laborers are simply willing to work for a lower price than are U.S. citizens. Naturally, an employer hires a foreign laborer over a U.S. citizen for this reason. If that's the case, then it would not be the case that the U.S. citizen is discriminated against on the basis of their nationality--rather it would simply be due to salary preferences. My own sense informed by anecdata is that this is the predominant reason that many employers hire foreign workers.

The second reason, about exploiting workers lack of knowledge, would also seemingly be parasitic on other workplace violations. But consider a distinct type of case. Like many employment-based visa pathways, H-1B visas, generally for professional-class jobs, are tied to a particular company. Consequently, for the employee, moving companies is a hassle and involves some risk. And the employer knows that. For some employers, this may make the employee a more favorable hire due to a type of exploitation--but one seemingly intrinsic to the H-1B visa program, and indeed the employment-based immigration framework more generally. This doesn't seem to me like "anti-American bias," as much as exploitation of foreign workers based on the tenuousness of immigration status. But certainly nativist complaints about professional-visa programs have been sounding louder. In transparency, I owe my presence here to these programs; objectively, I think they have been a net-good for the United States.

What about legality then?

Of course, every case is factually sensitive, but based on the above analysis, it is unlikely that a U.S. citizen will be able to raise a claim under "national origin" discrimination under Title VII. 

There may be another basis though. The IRCA prohibits discrimination on the basis of citizenship among potential employees who are "U.S. citizens, certain lawful, permanent residents, asylees, and refugees." (A narrow exception: The statute does allow for an employer to prefer a U.S. citizen to a foreign worker, provided that they are equally qualified.) And according to a 2010 DOJ technical assistance letter, "nonimmigrant visa holders, such as H-1B visa holders, are not protected from citizenship status discrimination."

With regard to foreign laborers willing to work for less, it's unclear that the IRCA will sustain any claim--unless employers are not making jobs available to U.S. citizens on the preconceived notion that they will not work for the same salary. If it is simply that the employer is undercutting market salaries for citizens by using professional-visa labor, that's not an IRCA claim.

With respect to exploiting the visa framework to assume that visa holders will be more tethered to their companies, compared to U.S. citizens, that might generate a claim of citizenship discrimination. Intuitively, the idea is that the U.S. citizen is being discriminated against because of their citizenship, and the benefits that brings. If they didn't have those benefits, then they would be hired, because the employer prefers those with a more tenuous status. This appears to be DOJ's position on the issue.

That said, there's another way of running the discrimination analysis. The IRCA's language states that it is "unfair" to "discriminate" against someone "in the case of a protected individual (as defined in paragraph (3)), because of such individual’s citizenship status." Let's run a Bostock-type counterfactual: Suppose Carrie is a protected individual, due to her U.S. citizenship--and she is claiming she was not hired by an employer because of her U.S. citizenship. If we change her citizenship to another nationality, but keep as much else the same as possible, counterfactual Carrie would be a "protected individual"--say a permanent resident. However, because permanent residents have many of the same relevant protections as citizens--like employment mobility--counterfactual Carrie would still not be hired. Thus, her citizenship is not a but-for cause of her not being hired. 

As with most counterfactual analyses, the question is what comparator we use--here, a non-protected individual or a protected individual who is not a citizen. I have not found a case that squarely addresses the question. 

We'll have to wait to see if the EEOC brings these claims. At the moment, it seems like they are more interested in litigating the case against DEI and maybe companies hiring immigrant professionals will be considered part of that agenda. If so, the courts will have to resolve thorny legal questions about the relationship between our immigration system and antidiscrimination law. Frankly, with this Court, I am wary of the consequences.

--Guha Krishnamurthi