EEOC Releases Draft Guidance on National Origin Discrimination, and Requests Public Comment
June 3, 2016
The U.S. Equal Employment Opportunity Commission (“EEOC”) issued proposed enforcement guidance on national origin discrimination on June 2, 2016.
Key Takeaways:
The EEOC guidance incorporates a wide array of topics related to national origin discrimination including intersectional discrimination, human trafficking, harassment, accent and fluency, national security requirements, and citizenship issues. In addition, the guidance also includes a “promising practices” section highlighting actions or programs to help employers reduce the risk of Title VII violations based on national origin. Although the EEOC has not included sweeping changes in re-interpreting Title VII, there are a number of areas where the agency is pushing the envelope to expand the scope of national origin coverage.
Additional Details:
When finalized, the guidance will replace Section 13 of the EEOC’s Compliance Manual, which was issued 14 years ago, in December 2002. It is somewhat surprising that the agency chose to update its guidance on national origin at this time, because there have been very few significant changes in this area of the law since the prior guidance issued. Additionally, the number of charges alleging national origin discrimination has remained steady during the 14-year-period. In 2002, 10.6 percent of EEOC charges alleged national origin discrimination. As of last year, that number rose a mere 0.1 percent to 10.7 percent.
The most significant aspects of the EEOC’s proposed guidance:
- Overlap and Intersectional Discrimination – The EEOC expects claims of national origin discrimination to be more likely to overlap with allegations of race, color or religious discrimination, resulting in charges alleging multiple bases of discrimination. The EEOC considers adverse treatment because an individual is a combination of two or more protected bases, i.e. an Asian woman to be ?intersectional discrimination” that should result in claims of national origin, race and sex discrimination.
- Human Trafficking – Title VII can apply to human trafficking cases if the employer’s conduct is directed at an individual or a group of individuals based upon national origin. The EEOC also indicates that egregious employer conduct that is typical in human trafficking cases will likely constitute unlawful harassment.
- Recruitment – If an employer’s current staff is ethnically or racially homogenous, the EEOC is more likely to view word of mouth recruitment and sending job posting only to ethnically or racially homogenous areas or audiences as having the purpose effect of excluding applicants based on national origin.
- Joint Employer – When a staffing firm and an employer have the right to control the means and manner of a worker’s employment they may be considered joint employers under Title VII regardless of whether they actually exercise that right to control the worker’s employment or have the statutory number of employees.
- Screening Based on Social Security Number – The practice of screening out new hires or candidates who cannot provide a Social Security number could run afoul of Title VII’s disparate impact theory if it disproportionately screens out work-authorized but newly-arrived immigrants and new lawful permanent residents of a certain ethnicity or national origin.
- Harassment Policies in Employees’ Native Spoken Language – In evaluating the effectiveness of the employer harassment policy for a Farragher-Ellerth affirmative defense, the EEOC will consider whether the complaint mechanism was accessible in the native languages spoken by employees if the employer knew of, or should have known of, the employees’ limited language capabilities.
- The Impact of the Guidance – Although EEOC Enforcement Guidance does not carry the same force of law that regulations establish, many courts are willing to provide deference to EEOC guidance and rulings based on the agency’s knowledge and expertise. The EEOC relies upon its Enforcement Guidance to direct its employees in charge investigations and related processing such as making cause determinations and considering litigation.
Follow Up Actions for Employers:
The public has until July 1, 2016 to provide input on the proposed guidance. The EEOC will consider the public’s comments before finalizing and releasing the guidance.
Employers should review the EEOC’s proposed guidance on national origin and consider whether their current policies and practices are in compliance.
Please contact FortneyScott if you have questions about the proposed National Origin Enforcement Guidance and how it may affect your business. For more information, contact Leslie Silverman, Esq., Shareholder at FortneyScott and former Vice Chair of the EEOC, or by telephone, 202-689-1204.
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know. Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions.
On February 5, 2025, six Plaintiffs (the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); The American Federation of Government Employees (AFGE); The American Federation of State, County & Municipal Employees, AFL-CIO (AFSCME); Service Employees International Union, AFL-CIO (SEIU); The Communications Workers of America, AFL-CIO (CWA); and Economic Policy Institute (EPI) filed a complaint in the U.S. District Court for the District of Columbia against the Department of Labor (DOL), Labor’s Acting Secretary Vince Micone, the U.S. DOGE Service (USDS), and the U.S. DOGE Service Temporary Organization. The complaint seeks declaratory and injunctive relief to prevent the “Department of Government Efficiency” (DOGE) from accessing DOL’s information systems and the sensitive data therein concerning both federal employees and private citizens. The complaint explains how DOGE, sanctioned only by Executive Order 14158 (Establishing the President’s Department of Government Efficiency), functions as a network of DOGE-related offices, teams, and roles overseen by Elon Musk within the Executive Office of the President and implanted within each federal agency. The complaint describes DOGE’s pattern as overtaking federal agencies without statutory authority, seizing their information systems, threatening career civil servants’ resistance with adverse employment action, and unilaterally dismantling or restructuring the agencies. As DOL is DOGE’s next posited target, plaintiffs seek to prevent DOGE from unlawfully accessing DOL’s sensitive information systems, including such systems maintained and managed by the Federal Employees’ Compensation Act Claims Administration, the Wage and Hour Division, the Occupational Safety and Health Administration, and the Bureau of Labor Statistics. These systems include medical information, financial information, and personnel information, as well as the identities of anonymous whistleblowers. Plaintiffs allege that DOGE’s actions are unconstitutional because DOGE lacks lawful authority to either direct agency actions or access statutorily restricted government systems. Rather, DOGE’s function is limited to advising and assisting the President. Plaintiff’s claims mostly arise under the Administrative Procedure Act, which protects individuals harmed by “arbitrary and capricious” final agency actions and provides court intervention when such harm occurs. Specifically, Plaintiffs accuse DOL of unlawfully threatening federal employees with termination, violating information privacy statutes by instructing and disclosing confidential and private records, creating new rules without meeting “notice and comment” requirements, and abusing its discretion. As relief, Plaintiffs asked the Court to declare DOGE’s access to DOL’s systems as unlawful. Plaintiffs also request a Court order forbidding DOL from granting DOGE access to DOL’s systems, taking adverse personnel action against employees who refuse providing DOGE with unlawful access, and providing non-public DOL information to any person with a conflict of interest. This is the first complaint filed challenging DOGE’s access to sensitive government information systems.
On February 3, 2025, four plaintiffs (the National Association of Diverse Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland) jointly filed a complaint challenging EO 14151 (“Ending Radical Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). The complaint does not challenge the revocation of 11246 yet addresses the legality of §§3-4 of EO 14173. The complaint alleges that EO 14173 is unconstitutional on various grounds and seeks a court order overturning the EO. With respect to EO 14173, the complaint alleges that §3 violates the Free Speech Clause of the First Amendment. By threatening FCA enforcement against federal contractors and grantees who certify that they do not operate undefined “programs promoting DEI,” plaintiffs allege that §3 chills the expression of or participation in diversity, equity, inclusion, and accessibility initiatives. Plaintiffs also alleges that §3 violates separation of powers because it empowers the executive branch, rather than Congress, to control federal funding based on whether contractors or grantees operate “programs promoting DEI.” As for §4 of EO 14173, the complaint alleges that it likewise violates the First Amendment’s Free Speech Clause by threatening civil investigation and “deterrence” against anyone who expresses support for undefined “illegal DEI.” Furthermore, because §4 is vague with respect to terms (e.g., “illegal DEIA and DEIA policies”) and the criteria for selecting which organizations are subject to investigation or enforcement actions, plaintiffs also allege §4 violates the Fifth Amendment’s Due Process Clause. We anticipate additional plaintiffs filing similar lawsuits related to EO 14173 are forthcoming.
Join David Fortney, Elizabeth Bradley, and Nita Beecher as they discuss the practical implications of how employers respond to the new prohibitions on “illegal DEI,” including:
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know. Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions.
On February 5, 2025, six Plaintiffs (the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); The American Federation of Government Employees (AFGE); The American Federation of State, County & Municipal Employees, AFL-CIO (AFSCME); Service Employees International Union, AFL-CIO (SEIU); The Communications Workers of America, AFL-CIO (CWA); and Economic Policy Institute (EPI) filed a complaint in the U.S. District Court for the District of Columbia against the Department of Labor (DOL), Labor’s Acting Secretary Vince Micone, the U.S. DOGE Service (USDS), and the U.S. DOGE Service Temporary Organization. The complaint seeks declaratory and injunctive relief to prevent the “Department of Government Efficiency” (DOGE) from accessing DOL’s information systems and the sensitive data therein concerning both federal employees and private citizens. The complaint explains how DOGE, sanctioned only by Executive Order 14158 (Establishing the President’s Department of Government Efficiency), functions as a network of DOGE-related offices, teams, and roles overseen by Elon Musk within the Executive Office of the President and implanted within each federal agency. The complaint describes DOGE’s pattern as overtaking federal agencies without statutory authority, seizing their information systems, threatening career civil servants’ resistance with adverse employment action, and unilaterally dismantling or restructuring the agencies. As DOL is DOGE’s next posited target, plaintiffs seek to prevent DOGE from unlawfully accessing DOL’s sensitive information systems, including such systems maintained and managed by the Federal Employees’ Compensation Act Claims Administration, the Wage and Hour Division, the Occupational Safety and Health Administration, and the Bureau of Labor Statistics. These systems include medical information, financial information, and personnel information, as well as the identities of anonymous whistleblowers. Plaintiffs allege that DOGE’s actions are unconstitutional because DOGE lacks lawful authority to either direct agency actions or access statutorily restricted government systems. Rather, DOGE’s function is limited to advising and assisting the President. Plaintiff’s claims mostly arise under the Administrative Procedure Act, which protects individuals harmed by “arbitrary and capricious” final agency actions and provides court intervention when such harm occurs. Specifically, Plaintiffs accuse DOL of unlawfully threatening federal employees with termination, violating information privacy statutes by instructing and disclosing confidential and private records, creating new rules without meeting “notice and comment” requirements, and abusing its discretion. As relief, Plaintiffs asked the Court to declare DOGE’s access to DOL’s systems as unlawful. Plaintiffs also request a Court order forbidding DOL from granting DOGE access to DOL’s systems, taking adverse personnel action against employees who refuse providing DOGE with unlawful access, and providing non-public DOL information to any person with a conflict of interest. This is the first complaint filed challenging DOGE’s access to sensitive government information systems.
On February 3, 2025, four plaintiffs (the National Association of Diverse Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland) jointly filed a complaint challenging EO 14151 (“Ending Radical Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”). The complaint does not challenge the revocation of 11246 yet addresses the legality of §§3-4 of EO 14173. The complaint alleges that EO 14173 is unconstitutional on various grounds and seeks a court order overturning the EO. With respect to EO 14173, the complaint alleges that §3 violates the Free Speech Clause of the First Amendment. By threatening FCA enforcement against federal contractors and grantees who certify that they do not operate undefined “programs promoting DEI,” plaintiffs allege that §3 chills the expression of or participation in diversity, equity, inclusion, and accessibility initiatives. Plaintiffs also alleges that §3 violates separation of powers because it empowers the executive branch, rather than Congress, to control federal funding based on whether contractors or grantees operate “programs promoting DEI.” As for §4 of EO 14173, the complaint alleges that it likewise violates the First Amendment’s Free Speech Clause by threatening civil investigation and “deterrence” against anyone who expresses support for undefined “illegal DEI.” Furthermore, because §4 is vague with respect to terms (e.g., “illegal DEIA and DEIA policies”) and the criteria for selecting which organizations are subject to investigation or enforcement actions, plaintiffs also allege §4 violates the Fifth Amendment’s Due Process Clause. We anticipate additional plaintiffs filing similar lawsuits related to EO 14173 are forthcoming.
Join David Fortney, Elizabeth Bradley, and Nita Beecher as they discuss the practical implications of how employers respond to the new prohibitions on “illegal DEI,” including:
Yesterday, Fortney & Scott launched the first in a series of webinars to provide employers with valuable information about President Trump’s actions that significantly impact the workplace.
FortneyScott presents one of a series of webinars regarding Trump's Executives Orders, specifically, the revocation of EO 11246.
In an anticipated move, the Department of Labor halted enforcement of anti-discrimination laws and affirmative action programs (AAPs) for federal contractors, following an Order from the Acting Secretary of Labor, Vincent Micone.
Former President Donald Trump has revoked a nearly 60-year-old executive order, originally signed by President Lyndon Johnson, that prohibited government contractors.
