National Origin Discrimination and the EEOC’s New Take on It

Virginia’s workforce is becoming increasingly diverse, and a key contributor to that demographic change is immigration. Unfortunately, as diversity increases, so do opportunities for national origin discrimination in employment. Long prohibited under Title VII of the Civil Rights Act, national origin discrimination is becoming an increasingly significant risk for both employers and employees. To add to that risk, the Equal Employment Opportunity Commission (EEOC) under the second Trump administration is interpreting Title VII’s prohibition differently than previous administrations. If you’re dealing with a national origin discrimination issue, either as an employee or employer, you should seek the counsel of a Norfolk employment lawyer.

What Counts as National Origin Discrimination? 

According to EEOC guidance, national origin discrimination is discrimination against an individual (or his or her ancestors) because of their place of origin or their physical, cultural, or linguistic characteristics associated with a particular national origin group. It can be based on: 

• Perception: The belief that an individual is from one or more particular countries or belongs to one or more particular national origin groups (e.g., discrimination based on the perception that a person is Middle Eastern or Arab)
• Association: Discrimination against an individual because of his or her association with someone of a particular national origin (e.g., discrimination because a person is married to a person of a different national origin)
• Language: Discrimination against individuals who speak certain languages or have certain accents where the language or accent does not materially interfere with job performance (e.g., discrimination because a receptionist has an Indian accent but otherwise speaks fluent English)

Most national origin discrimination claims are based on either disparate treatment or a hostile work environment. With disparate treatment claims, a plaintiff alleges that an employer treated them differently (i.e., negatively) from individuals of a different national origin. With hostile work environment claims, a plaintiff alleges that an employer created a pervasive hostile or abusive environment such that it altered the condition of the individual’s employment. For more information about types of employment discrimination claims, please speak to a Norfolk employment lawyer. 

Workplace Scenarios That Create Liability 

National origin discrimination can show up in several different workplace scenarios: 

Hiring and Recruitment 

National origin discrimination in hiring and recruitment occurs when an employer limits employment opportunities or unreasonably treats candidates differently for purposes of recruitment and hiring. It could occur, for example, where an employer advertises job openings only to ethnically homogenous audiences or cancels an interview after learning that the candidate is of a certain ancestry. 

Termination 

Virginia is an at-will employment jurisdiction, meaning that employers can hire and terminate employees for any reason or no reason. However, terminated employees may still pursue wrongful termination claims if they believe their termination was discriminatory — for example, based on their national origin rather than their job performance. 

Work Assignments 

Employers risk Title VII liability if they assign or refuse to assign individuals to certain positions, deny them promotions, physically isolate them, or otherwise segregate them into jobs based on their national origin. This could occur, for example, where a retailer requires individuals of Hispanic origin to work in non-customer-facing roles due to an assumed customer preference for non-Hispanic sales staff. 

Discipline 

Rules regarding employee discipline must be nondiscriminatory and enforced consistently across all employees, regardless of national origin. Employers could run afoul of this requirement, for example, by allowing employees of one national origin to make up for tardiness while denying that privilege to employees of other national origins. 

Proving and Defending National Origin Discrimination Claims 

National origin discrimination is rarely overt, so many legal claims for it rely on the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, an employee must establish a prima facie case by showing: 

1. Membership in a protected class (i.e., based on national origin)  
2. Qualification for the position 
3. An adverse employment action
4. More favorable treatment of similarly situated employees outside the protected class

The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The employee may then rebut the employer’s stated reason by showing that it is a mere pretext for discrimination. For more information about proving and defending claims under the McDonnell Douglas standard, please contact a Norfolk employment lawyer. 

National Origin Discrimination Under Trump 2.0 

Title VII has always prohibited discrimination based on any national origin, including against individuals originally of “American” national origin. In other words, it applies to all racial, ethnic, and national origin groups. Nevertheless, the EEOC’s enforcement efforts related to national origin discrimination traditionally have focused on minority and immigrant workers. That focus has shifted under the second Trump administration.  

In February 2025, Acting EEOC Chair Andrea Lucas announced that the EEOC would “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.” Acting Chair Lucas cited employer policies favoring illegal aliens, migrant workers, and visa holders over American workers as violating federal law prohibiting national origin discrimination. 

In November 2025, the EEOC released updated educational materials covering what it deems “anti-American discrimination,” giving examples such as:

• Advertising positions as “H-1B preferred” or “H-1B only”
• Terminating U.S. workers who are between job assignments at a higher rate than employees who are guest workers
• Subjecting U.S. workers to more laborious application methods than H-1B visa holders

Acting Chair Lucas states that the EEOC is committed to ensuring employers and workers better understand the “even-handed” protections provided to all workers by Title VII. 

Thus, while the underlying law has not changed, the Trump administration has signaled that it will now pursue “enhanced investigation and enforcement” against “anti-American” national origin discrimination.

Avoid National Origin Discrimination by Working With a Norfolk Employment Lawyer 

National origin discrimination enforcement is changing. To ensure that you do not run afoul of the EEOC’s new push, you should consider seeking the advice of experienced legal counsel. To get started, please contact a Norfolk employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.