EEOC Releases Draft Guidance on National Origin Discrimination, and Requests Public Comment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. 

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As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys on Thursday, August 14th at noon EDT for an in-depth webinar covering what these changes may mean for your organization. CLICK HERE to register. Key Topics to be Covered Include: New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling. Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS. Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance. Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks. Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations. Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau. Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure. Who Should Attend: Compliance professionals, in-house counsel, HR and inclusion leaders, and anyone with responsibility for compliance with labor and employment laws.
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On July 23, 2025, the Trump Administration issued America’s AI Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure and jobs, and for developing new criteria to address misinformation, including specifically identifying DEI. Join FortneyScott lawyers on Thursday, July 31, 2025, at 12:00 PM ET for a discussion of the employment-law related key provisions of America’s AI Action Plan and how they may impact the workforce. Please click here to register.
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The Trump Administration announced an ambitious Artificial Intelligence Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure, jobs, and developing new criteria to address misinformation, including specifically identifying DEI. Overview of the Action Plan . As anticipated by Executive Order 14179 , Removing Barriers to American Leadership in Artificial Intelligence , the White House issued Winning the Race: America’s AI Action Plan (the “Action Plan”) on July 23, 2025. The Action Plan sets forth the Administration’s policy recommendations based on the following three pillars: (1) acceleration of AI innovation; (2) building American AI infrastructure, and (3) leading in international AI diplomacy and security. Further, the Action Plan contemplates initiatives led by various federal agencies, including the Department of Labor (“DOL”), to promote the advancement and adoption of AI throughout all facets of American life. Key initiatives of the Action Plan include significant deregulatory efforts aimed at promoting AI development: Consistent with Executive Order 14192 , Unleashing Prosperity Through Deregulation , the Office of Management and Budget (“OMB”) will work with all federal agencies to review, rescind, and/or amend regulatory and sub-regulatory hinderances to AI development and deployment; OMB will also work with federal agencies to limit discretionary AI-related federal funding to states with AI regulatory requirements that the administration considers onerous; and The National Institute of Standards and Technology (“NIST”) will revise its “AI Risk Management Framework” to eliminate references to misinformation, DEI, and climate change. The Key Workforce Provisions. The Action Plan tasks the DOL with leading, either on its own or in conjunction with other agencies, to empower American workers in the age of AI, including: Workforce funding streams should flow towards training, apprenticeships, and other skill-based initiatives that prioritize AI skill development; The Bureau of Labor Statistics should study AI’s impact on the labor market to incorporate the findings into DOL’s forthcoming “AI Workforce Research Hub”; and Exposure programs, pre-apprenticeships, training programs, and Registered Apprenticeships should be created and/or expanded for occupations related to the building, operation, and maintenance of AI infrastructure. The Action Plan also includes specific recommendations to DOL for training a skilled workforce for AI infrastructure work. DOL will: identify high-priority occupations; partner with state and local government to support the creation of industry-driven training programs; expand early career exposure and pre-apprenticeship programs; and, expand the use of Registered Apprenticeship in occupations that are critical to AI infrastructure. Employers Next Steps. As federal agencies accelerate and focus on AI adoption, private sector organizations need to assess how their workforce strategies align with emerging national priorities. Employers need to identify opportunities to ensure their workforces are trained and proficient with AI-related skills and technology. Companies may also want to explore paths to participate in or benefit from federal programs and funding aimed at supporting AI innovation, infrastructure, and international leadership. Additionally employers need to be cognizant of a likely tension between the federal deregulatory approach and a growing number of state law and regulatory requirements addressing the use of AI in the workplace. FortneyScott invites clients and friends for a complimentary webinar discussing these developments on July 31, 2025, at 12:00 PM ET. Please click here to register. If you have any questions, please reach out to your FortneyScott attorney.
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As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys on Thursday, August 14th at noon EDT for an in-depth webinar covering what these changes may mean for your organization. CLICK HERE to register. Key Topics to be Covered Include: New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling. Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS. Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance. Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks. Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations. Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau. Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure. Who Should Attend: Compliance professionals, in-house counsel, HR and inclusion leaders, and anyone with responsibility for compliance with labor and employment laws.
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On July 23, 2025, the Trump Administration issued America’s AI Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure and jobs, and for developing new criteria to address misinformation, including specifically identifying DEI. Join FortneyScott for a discussion on the employment-law related key provisions of America’s AI Action Plan and how they may impact the workforce.
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On July 23, 2025, the Trump Administration issued America’s AI Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure and jobs, and for developing new criteria to address misinformation, including specifically identifying DEI. Join FortneyScott lawyers on Thursday, July 31, 2025, at 12:00 PM ET for a discussion of the employment-law related key provisions of America’s AI Action Plan and how they may impact the workforce. Please click here to register.
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The U.S. Department of Labor (DOL) today announced several programs designed to help employers, as well as unions and pension plans, voluntarily assess and improve their compliance with federal labor laws. “Self-audits are one of the most effective ways to build a culture of compliance and trust,” said Deputy Secretary of Labor Keith Sonderling. “These programs are designed to give employers … the tools they need to correct potential violations proactively.” Of particular interest for employer compliance, the self-audit programs include: minimum wage and overtime under the Fair Labor Standards Act (FLSA) and benefits under the Family and Medical Leave Act (FMLA) (Payroll Audit Independent Determination (PAID)) ; protected veterans’ rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) (SALUTE - Support and Assistance for Leaders in USERRA Training and Employment) ; and, safety and health programs (Voluntary Protection Programs) . For employers dealing with Wage & Hour issues, the Payroll Audit Independent Determination (PAID) established in the prior Trump Administration for resolution of FLSA and FMLA compliance matters has been reinstituted. By using the PAID program, the audit results that are approved by DOL can provide significant protection against collective and class overtime claims for employers. FortneyScott has extensive experience in advising clients on self-audits that are overseen by DOL. Please contact your FortneyScott attorney for more information about these new compliance opportunities.
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July 10, 2025
On Friday, June 27, 2025, OFCCP Director Catherine Eschbach issued a letter inviting federal contractors to voluntarily submit information to OFCCP detailing contractors’ efforts to “wind down compliance with the EO 11246 regulatory scheme and ensure full compliance with the Nation’s non-discrimination laws.” Join David Fortney, Liz Bradley and Nita Beecher as they analyze Director Eschbach’s letter and provide practical insights to assist federal contractors in deciding whether or how to respond to this request.
July 2, 2025
The U.S. Department of Labor has officially lifted the abeyance on OFCCP’s enforcement of Section 503 of the Rehabilitation Act (503) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) via Secretary's Order 08-2025 , issued by Secretary Lori Chavez-DeRemer. This development follows the January 2025 revocation of Executive Order (EO) 11246 through the Trump Administration's EO 14173, which fundamentally altered OFCCP’s enforcement priorities and led to the temporary pause of Section 503 and VEVRAA activities via Secretary’s Order 03-2025. Key Takeaways for Employers Immediate Resumption of Investigations: OFCCP will begin processing all Section 503 and VEVRAA complaints held during the abeyance. New complaints filed during the suspension period will also move forward. Administrative Closure of Compliance Reviews: Due to historical entwinement of EO 11246 review formats with Section 503/VEVRAA, all pending compliance reviews are being administratively closed. Formal notifications will be issued to affected contractors. AAP Certification Still Closed: Despite the resumed enforcement, the affirmative action program (AAP) certification portal remains closed . Employers are still obligated to maintain compliance with Section 503 and VEVRAA regulations. VAHBP Enforcement Moratorium Extended: Providers under the Veterans Affairs Health Benefits Program (VAHBP) remain exempt from affirmative action enforcement under Section 503 and VEVRAA through May 7, 2027 . They are still subject to nondiscrimination complaint investigations. What Employers Should Do Now Watch for formal notice of compliance review closures and updates from OFCCP. Monitor communications from OFCCP and the Department of Labor for further guidance. Reach out to FortneyScott for assistance to: Review existing Section 503 and VEVRAA policies and documentation. Ensure ongoing compliance with regulatory obligations, such as preparation of 503 and VEVRAA AAPs.
July 2, 2025
The DOL is proposing to rescind the regulations implementing EO 11246 in addition to revising its regulations for Section 503 and VEVRAA in response to President Trump’s EO 14173 and EO 14219 . Proposed Changes to Section 503 Regulations The Trump Administration has proposed significant changes to the Section 503 regulations applicable to federal contractors. Specifically, the proposal: Eliminates 41 C.F.R. § 60-741.42, which requires contractors to invite applicants and employees to self-identify disability status. The Administration asserts that such data collection is inconsistent with the ADA, notwithstanding EEOC guidance affirming its permissibility. Removes the requirement under 41 C.F.R. § 60-741.44(k) for contractors to document data collection analysis , while retaining the annual assessment obligation for evaluating outreach and recruitment efforts under 41 C.F.R. § 60-741.44(f)(3). Rescinds the 7% utilization goal in 41 C.F.R. § 60-741.45 , citing its reliance on revoked EO 11246 job group structures. The proposal makes clear it will not impose a substitute analysis, referencing the directive in EO 14219 to reduce regulatory burdens. Removes cross-references and provisions tied to EO 11246 , while adding provisions for administrative enforcement proceedings under 41 C.F.R. § 60-741.65. These changes reflect a broader deregulatory approach and raise significant compliance and policy considerations for federal contractors. Proposed Changes to VEVRAA The proposed changes to VEVRAA are simply to remove cross references and language citing EO 11246 authority and to add administrative enforcement proceeding provisions to 41 C.F.R. § 60-300. VEVRAA proposal retains both the self-identification requirements for protected veterans and the hiring benchmark (at this point, OFCCP has not updated its hiring benchmark for 2025). Conclusion Despite the impending elimination of OFCCP—set for October 1, 2025—the comment periods for all three regulatory developments end September 2, 2025. OMB will then have an additional 30-day comment period. If you are interested in filing comments to these proposed changes, please let FortneyScott know by reaching out to your FortneyScott attorney or sending us an email at info@fortneyscott.com . In the meantime, FortneyScott will continue to monitor these and other developments related to EO 14173.
June 30, 2025
The OFCCP has made available for public review proposed changes to the regulations under VEVRAA and Section 503 . It has also released a proposal to eliminate the regulations tied to Executive Order 11246. These proposed rules are expected to be officially published in the Federal Register tomorrow, initiating a 60-day period for public comment. The move to rescind the Executive Order 11246 regulations follows the recent revocation of that order through Executive Order 14173. Changes suggested for the VEVRAA regulations appear to be minimal and would not significantly alter compliance obligations for contractors. In contrast, the proposed updates to the Section 503 rules would eliminate the 7 percent utilization goal by job group and the requirement that applicants/employees self-identify as disabled while retaining the annual outreach and recruitment assessment. Final rules are not anticipated for several months, and in the meantime, the current VEVRAA and Section 503 regulations remain in effect. The proposed rules will be published in the Federal Register tomorrow : https://www.federalregister.gov/public-inspection/current#regular-filing-federal-contract-compliance-programs-office
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