Ohio Employer Law Blog

DOJ's attack on disparate impact gets Title VII exactly backwards

2026-06-10T06:59:50.519-04:00

The Department of Justice just issued a legal opinion claiming that disparate impact liability is unconstitutional because it supposedly "incent[s] — and even coerce[s] — employers to make race-based decisions to avoid liability."

That's a remarkable claim.

It's also a fundamental misunderstanding of how disparate impact law actually works.

Disparate impact claims exist precisely because they target facially neutral policies. No one is alleging intentional discrimination. No one is claiming that an employer adopted a policy because of race, sex, or some other protected characteristic.

The entire point of disparate impact is that a neutral rule can nonetheless operate as an unnecessary barrier to employment opportunities.

In fact, that's exactly why the Supreme Court recognized disparate impact liability in Griggs v. Duke Power Co. in 1971. The employer in Griggs required a high school diploma and certain aptitude test scores for transfers and promotions. The policies were facially neutral. They said nothing about race. Yet they disproportionately excluded Black employees and bore little relationship to successful job performance. The Supreme Court held that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." The Court's point was simple: employment criteria should measure a person's ability to perform a job, not create arbitrary barriers that disproportionately exclude protected groups.

Think aptitude tests. Physical fitness standards. Educational requirements. Criminal background checks. Credit checks. Hiring algorithms. AI screening tools.

None of these practices are discriminatory on their face. Yet all have the potential to disproportionately exclude certain protected groups.

Title VII's disparate impact framework asks a simple question: Does the employer have a legitimate business reason for using the practice?

If the answer is yes, the employer wins.

That's the part DOJ's opinion conveniently ignores.

Disparate impact liability does not require employers to adopt quotas. It does not require race-based hiring. It does not require preferential treatment.

It requires employers to justify employment practices that disproportionately exclude protected groups.

That's it.

An employer that uses a criminal background check because it is job-related and consistent with business necessity has a defense. An employer that uses a validated aptitude test tied to actual job performance has a defense. An employer that can demonstrate a legitimate need for a particular hiring criterion has a defense.

The law does not say, "You must hire more people from Group X."

The law says, "If your policy disproportionately screens out Group X, explain why the policy is necessary."

Those are very different things.

What's especially strange about DOJ's position is that it essentially assumes employers will engage in intentional discrimination to avoid being accused of unintentional discrimination.

That logic makes no sense.

If an employer responds to disparate impact concerns by making race-based employment decisions, that employer has created an entirely different legal problem. Title VII already prohibits intentional discrimination.

The cure for a potentially problematic employment practice is not race-conscious decision-making. The cure is validating the practice, modifying it, or eliminating it if it lacks a sufficient business justification.

The practical implications of this position could be enormous.

Consider criminal background checks.

For years, employers have been advised to carefully tailor criminal history screens to the requirements of specific jobs because broad exclusions can disproportionately affect certain racial groups. Employers have been encouraged to consider the nature of the offense, the time elapsed since conviction, and the relationship between the offense and the job.

Under DOJ's new theory, those concerns could largely disappear.

The same would be true for educational requirements that aren't actually necessary for job performance. Aptitude tests that have never been validated. Physical requirements that exceed what the job actually demands. AI hiring tools that systematically exclude qualified candidates.

Ironically, many of these are the very types of employment criteria that gave rise to disparate impact liability in Griggs more than five decades ago.

The question would no longer be whether these practices create unnecessary barriers to employment.

The question would be whether someone can prove intentional discrimination.

That's a much higher hurdle.

And that's exactly why disparate impact has been a cornerstone of civil rights enforcement for more than half a century.

Discrimination doesn't always announce itself with a racist memo or a smoking-gun email. Sometimes it appears through systems, policies, and practices that produce exclusionary outcomes despite facial neutrality.

That's why Congress codified Griggs' disparate-impact framework in the Civil Rights Act of 1991. That's why the Supreme Court has repeatedly recognized it. And that's why the EEOC has spent decades enforcing it.

The DOJ's opinion may signal the administration's enforcement priorities. It may embolden employers to challenge disparate impact claims. It may even preview future litigation aimed at persuading courts to revisit longstanding precedent.

But that would require overturning more than fifty years of settled law dating back to Griggs v. Duke Power.

Let's not pretend that disparate impact liability somehow forces employers to engage in intentional discrimination. The doctrine exists because facially neutral employment practices can sometimes function as unnecessary barriers to equal employment opportunity. That's not a bug in Title VII. It's one of the statute's core features.

Eliminating disparate impact liability would not create a more merit-based workplace.

It would simply make it harder to challenge employment barriers that disproportionately exclude protected groups while serving little or no legitimate business purpose.

Unpaid leave is an ADA reasonable accommodation; it just can't be the only one you offer

2026-06-09T07:25:13.175-04:00

If your ADA accommodation policy starts with "take unpaid leave," you're doing it wrong.

Just ask the 15 Dunkin' Donuts franchisees that recently agreed to pay $250,000 to settle an EEOC disability discrimination lawsuit.

According to the EEOC, these franchisees maintained a policy that refused to provide reasonable accommodations to employees with medical restrictions. Instead, workers were placed on unpaid, indefinite leave until they could return to work with no restrictions whatsoever. In other words, if an employee wasn't "100% healed," they weren't working.

The EEOC calls this a "100%-healed" policy. The ADA calls it unlawful.

Too many employers mistakenly assume that if an employee has medical restrictions, the safest course is to send them home until they're fully recovered. That instinct is understandable. It's also exactly what the ADA is designed to prevent.

The ADA requires employers to engage in an interactive process with employees seeking accommodations and to conduct an individualized assessment of whether they can perform the essential functions of their jobs with a reasonable accommodation. Sometimes that assessment and interactive process results in modified duties. Sometimes it's a schedule change. Sometimes it's assistive equipment. And yes, sometimes it's a leave of absence.

Leave can absolutely be a reasonable accommodation under the ADA. It just can't be the only accommodation you're willing to consider.

An employee with lifting restrictions might still be able to perform the essential functions of a cashier position. An employee recovering from surgery might need a temporary schedule adjustment. An employee with a mobility impairment might need a workstation modification. Automatically placing these employees on unpaid leave skips the interactive process entirely and assumes that disability equals inability.

That's precisely what got these Dunkin' franchisees into trouble.

The EEOC also alleged that employees were effectively forced to resign or were terminated because they couldn't provide a doctor's note releasing them to work without restrictions. That's another hallmark of an unlawful 100%-healed policy. The ADA doesn't require employees to be restriction-free. It requires employers to determine whether employees can perform their jobs with reasonable accommodation.

The agency's settlement announcement contains a quote every employer should tape to its ADA policy manual: "The ADA requires employers to individually assess reasonable accommodations and grant those which do not pose an undue hardship for the employer. Uniform policies eliminating such individual considerations are red flags for ADA violations."

That's the lesson every employer should take from this settlement.

If your handbook, leave policy, or accommodation practices contain language requiring employees to be fully recovered, have no restrictions, or be 100% healed before returning to work, fix it now. Likewise, if your managers routinely respond to medical restrictions by immediately placing employees on unpaid leave without exploring other options, you're creating the same risk that cost these franchisees a quarter-million dollars.

The ADA requires individualized assessments, not automatic decisions. If your default response to workplace restrictions is unpaid leave, you're not engaging in the interactive process. You're building the plaintiff's case for them.

The EEOC's new Enforcement Plan is way more politics than strategy

2026-06-08T09:46:12.421-04:00

The EEOC has replaced its 2024-2028 Strategic Enforcement Plan with a new National Enforcement Plan for 2025-2029. The change is more than cosmetic. It reflects a significant shift in what the agency believes its mission should be.

To be clear, intentional discrimination against anyone because of race, sex, religion, national origin, age, disability, or any other protected characteristic is unlawful. Full stop. Title VII protects everyone. An employer cannot justify discrimination simply because it occurs in the name of diversity, equity, or inclusion.

But that's not really the story here.

The story is what the EEOC has chosen to prioritize.

The agency's stated Chair Priorities now include "remedying DEI-related race and sex discrimination," "protecting American workers from anti-American national origin discrimination," "defending women's rights to single-sex spaces at work and workers' rights to express the binary nature of sex," and protecting religious liberty and religious accommodations. The plan also repeatedly identifies DEI programs, hiring initiatives, and workplace diversity practices as enforcement targets.

None of these issues fall outside the EEOC's jurisdiction. If an employer intentionally discriminates based on race, sex, religion, or national origin, the agency should investigate. The question is whether elevating these issues to the agency's highest enforcement priorities reflects a neutral assessment of workplace discrimination or a political response to the culture-war issues dominating today's headlines.

The most revealing sentence in the entire document may be the one few employers will notice. The EEOC expressly states that it will use its enforcement authority "to advance the Administration's policy objectives."

That's an astonishing admission. The EEOC was not created to advance presidential policy objectives. It was created to enforce federal anti-discrimination laws. Those are not always the same thing.

Every administration leaves its fingerprints on federal agencies. That's politics. But this plan reads less like a neutral enforcement roadmap and more like a political document designed to reassure the White House that the agency is aligned with its culture-war priorities.

For most of its history, the EEOC has focused its resources on combating discrimination that has historically excluded and marginalized workers from equal employment opportunity. This plan does not abandon that mission outright. But it unmistakably shifts the agency's attention toward issues that have become central to the current Administration's political agenda.

An EEOC focused on rooting out discrimination wherever it exists is fulfilling its statutory mission. An EEOC focused on advancing the political objectives of its boss is something very different.

What should employers do? Don't overreact, but don't ignore the signal. Review DEI initiatives for legal compliance. Ensure accommodation processes work effectively for both disability and religious requests. Revisit policies addressing sex-segregated facilities, pronoun usage, and employee expression. Most importantly, continue making employment decisions based on qualifications, performance, and business needs—not politics.

Administrations change. Enforcement priorities change. The law changes more slowly. Smart employers should keep their focus there.

WIRTW #800: the 'world cup' edition

2026-06-05T08:18:10.195-04:00

The World Cup kicks off on June 11, and plenty of matches will be played during the workday. (June 17, I'm looking at you. Portugal vs. DR Congo starts at 1 p.m. ET, followed by England vs. Croatia just three hours later.)

So what's an employer of football-loving employees to do?

Nick Mohammed, of Ted Lasso fame, has a suggestion. He's released a tongue-in-cheek video called Fight for Your Right to Watch the 2026 FIFA World Cup at Work.

I'm not suggesting employees spend the next six weeks with one eye on their work and the other on a World Cup stream.

Then again, I'm not exactly suggesting they don't, at least for games that matter to them.

Instead of treating the World Cup as six weeks of lost productivity, smart employers might view it as six weeks of culture-building. A lunchtime watch party. A company bracket. National team jerseys on match days.

If employees are going to be paying attention anyway, you might as well harness the enthusiasm rather than police it. Productivity might dip for 90 minutes, but morale and goodwill can last a lot longer.

Here's what I read this week that you should read, too.

Is Beer at Work a Problem, or Is It a Sign of Something Bigger? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Court Orders Expert to Hand Over AI Prompts—A Discovery First Employers Can't Ignore — via Dan Schwartz's Connecticut Employment Law Blog

How People Are Really Using AI in 2026 — via Harvard Business Review

AI is coming for the workplace — and HR is in the driver's seat — via HR Dive

The Rise of the Fake Applicant: How to Stop AI-Driven Hiring Fraud — via EntertainHR

A uni professor admitted using AI to write an opinion piece. Here's what it revealed about trust in the technology — via The Guardian

[A]ll [I] Could Ask For — via Above the Law

PWFA Claims Have Arrived: Anatomy of a Lawsuit — via EntertainHR

Can a Salaried Exempt Employee Work Hourly Shifts Without Triggering Overtime on the Whole Salary? — via Eric Meyer's Employer Handbook Blog

Stuck at the Bargaining Table — via The Chief Organizer Blog

EEO-1 Reporting Going Away? Breaking Down the EEOC's New Proposal — via The Labor & Employment Law Blog

The 15 Beers That Defined American Craft Brewing — and Where They Are Now — via VinePair

2025 Craft Volume Declined 4%, Not 5.1% as Previously Reported, per BA Correction — via BrewBound

Ohio's new ethics guide — Artificial Intelligence for Lawyers and Judicial Officers — leaves one big question unanswered

2026-06-04T08:32:49.897-04:00

Ohio's new AI Ethics Guide for Lawyers is worth reading.

It tackles many of the questions lawyers have been asking since generative AI entered the mainstream: competence, confidentiality, client communications, billing, hallucinated citations, supervision, and judicial use of AI.

First, credit where it's due. Ohio deserves praise for stepping into a conversation that many jurisdictions have been reluctant to have. Lawyers are hungry for practical guidance on AI, and doing nothing is no longer an option. The Ohio Board of Professional Conduct deserves recognition for taking a serious run at a rapidly evolving issue.

Which is why one part of the Guide surprised me. On the question of whether lawyers can ethically disclose client information to AI platforms, the guidance seems to say both yes and no.

On one hand, the Guide acknowledges that lawyers may use AI tools in client representations and contemplates circumstances in which client-related information may be entered into an AI system. It advises lawyers to use AI products with adequate security measures and confidentiality safeguards.

"[O]nly AI tools offered with adequate security measures and other confidentiality safeguards should be used when client-related information is disclosed (or information possibly leading to the identity of a client)."

But then it says this:

"Regardless of the AI tool utilized, lawyers should always anonymize client information and refrain from inputting details that could lead to the discovery of the client's identity."

If that's the rule, then what exactly are we talking about when we discuss secure enterprise AI platforms?

Because if lawyers must always anonymize client information and avoid information that could reveal a client's identity, then the security measures, confidentiality protections, and contractual safeguards of a particular AI product become largely irrelevant. Under that reading, the answer is simple: never disclose client information to any AI platform, no matter how secure.

Yet the Guide spends considerable time discussing the use of AI tools that expressly do not store, train on, or share user data.

That discussion only makes sense if disclosure of client information is sometimes permissible when adequate safeguards exist.

Those are two very different standards.

One says: Only use secure AI tools when disclosing client information.

The other says: Never disclose identifiable client information at all.

For firms trying to develop AI governance policies, that distinction matters.

Lawyers have been sharing confidential client information with third-party vendors for decades—email providers, cloud storage companies, document management systems, e-discovery vendors, and legal research platforms. The ethical question shouldn't be whether AI is different. The question should be what safeguards are sufficient to permit its use.

A helpful tip on the FLSA's tip credit

2026-06-03T13:55:02.787-04:00

For many craft breweries, the taproom is where the magic happens. It's where customers connect with your brand, your beer, and your people.

It's also where wage-and-hour lawsuits often begin.

Artisanal Brewing Ventures, the company behind Southern Tier, Victory, and other craft beer brands, is facing a nationwide collective action over its pay practices at 15 taprooms across five states. At the heart of the lawsuit is an issue that too many hospitality employers overlook: compliance with the Fair Labor Standards Act's tip-credit rules.

The allegations should sound familiar to brewery owners. Servers and bartenders allegedly were paid the tipped minimum wage while performing opening and closing duties, cleaning, stocking inventory, moving kegs, taking out trash, and other side work. The lawsuit also claims employees worked off the clock and that the company failed to satisfy the notice requirements necessary to claim a tip credit. Those allegations were enough for a federal judge to conditionally certify a nationwide collective action and authorize notice to be sent to tipped employees throughout the company's operations.

Whether those allegations prove true remains to be seen. What matters is how easily tip-credit issues can turn into expensive litigation.

Many employers mistakenly believe that paying a tipped employee a cash wage and allowing them to keep tips is enough. It isn't.

The FLSA imposes specific requirements before an employer can claim a tip credit. Employees must receive required notice. Tip pools must be structured correctly. Employers must ensure tipped employees are performing tip-producing work when paid at the tipped rate. Certain non-tipped duties can create liability if not handled properly. And every minute worked must be recorded and paid.

Get those rules wrong and the consequences can be severe.

The risk isn't limited to one employee claiming a few dollars in unpaid wages. A defective tip-credit practice often affects every server and bartender in every location. That's why plaintiffs' lawyers target these cases. One alleged policy can become a collective action spanning multiple locations and hundreds of employees. Here, the court found sufficient evidence of an alleged common policy to allow notice to be sent to similarly situated tipped employees nationwide.

For craft breweries, the lesson is simple.

Don't assume your tip-credit practices are compliant because they've always been done that way. Review your onboarding documents, side-work requirements, tip-pooling procedures, and timekeeping practices. Make sure managers understand when tipped employees must be paid the full minimum wage and ensure no one is working before clocking in or after clocking out.

The taproom may be the heart of your brewery. It's also one of your biggest wage-and-hour risks. A proactive audit today costs far less than defending a collective action tomorrow.

🎶 With my mind on my Title VII and Title VII on my mind. 🎶

2026-06-02T06:49:00.000-04:00

Barbie Bassett, a longtime white news anchor for WLBT, lost her job after two on-air comments her employer deemed racially offensive. First, she referred to a Black reporter's grandmother as "grand m*mmy." WLBT received viewer and employee complaints and gave Bassett a written warning.

Less than six months later, during an on-air segment about Snoop Dogg, Bassett dropped the phrase, "fo shizzle, my n**zle." A Black co-anchor immediately told her, "I can't believe you just said the N word on live TV."

Complaints followed, as did national media, and then Bassett's termination.

She sued, claiming race discrimination. Her argument was, basically, WLBT fired her because she was white, relying heavily on testimony from the station's general manager that "there are some things that Black people can say that White people can't say."

The 5th Circuit was not having it. Title VII does not require employers to make perfect decisions. It requires them to make non-discriminatory ones. WLBT said it fired Bassett because she twice used racially offensive language on air, the second time after a written warning. That is a legitimate, non-discriminatory reason.

Maybe WLBT was wrong about what Bassett meant. Maybe she meant no harm. Maybe she thought she was merely quoting Snoop. None of that mattered. As the court put it, management does not have to make proper decisions, only non-discriminatory ones.

That is the key employer takeaway. Intent does not always save an employee. Impact matters. Reputation matters. And when the employee has already been warned, the next mistake may be the last.

This case also offers a reminder about "context." Yes, context matters. But context is not a magic wand. "I was just quoting a song" will not always get an employee back on the payroll. Some words carry freight. Some phrases carry history. And some live-TV comments leave employers with little choice but fire.

Employers should still be careful. Investigate. Document. Apply standards consistently. Avoid loose comments that sound like different rules for different races. But when an employee violates workplace standards after a clear warning, courts are not likely to second-guess the employer's business judgment.

Or, to borrow from Snoop: with Title VII, you have to mind your Ps and Qs … and definitely your Ns.

The one mistake I keep seeing employers make, over and over again

2026-06-01T08:39:08.296-04:00

One of the biggest mistakes I see employers make, over and over again, is treating employee wage information as "confidential."

Policies that ban employees from discussing pay.

Confidentiality rules that include "wages," "salary," "compensation," or "payroll information."

Managers who tell employees they are not allowed to ask coworkers what they earn.

HR departments that discipline employees for talking about their pay.
Employers that fire employees for creating or sharing salary spreadsheets.

Stop it.

Federal labor law protects discussions of employees' pay data by non-supervisory employees. Period.

Vermont Information Processing learned that lesson the hard way.

Software engineer Christopher Bendel and a coworker compared salaries over Google Workspace. Then Bendel created a spreadsheet. Within hours, about 25 employees added their pay information. Management found it, hated it, disabled it, and fired him.

VIP defended the termination by calling Bendel disruptive, disloyal, hostile, and guilty of misusing company technology. The D.C. Circuit was not buying it.

The court upheld the NLRB's finding that VIP unlawfully fired Bendel because of his protected activity. The timing mattered. VIP had planned a new role for him before discovering the spreadsheet. Within roughly 90 minutes, he was gone. The shifting explanations looked like what they were: excuses.

The court gave VIP a partial win as to the other three fired employees, but not because salary sharing lost protection. The issue was procedural. The Board relied on a broader "workplace conditions" theory than the complaint had fairly charged.

Do not miss the forest for that procedural tree.

The core lesson is unchanged. Federal labor law protects pay transparency among non-supervisory employees, union or no union. Few things are more obviously about mutual aid or protection than employees comparing wages to determine whether they are paid fairly.

That means you cannot ban pay discussions. You cannot tell employees their wages are confidential. You cannot discipline them for asking coworkers what they make. You cannot fire them for creating a salary spreadsheet. And you cannot launder retaliation through complaints about attitude, disruption, loyalty, or culture fit.

Employers may still enforce neutral rules about working time, access to systems, trade secrets, harassment, threats, and sabotage. But those rules must be real, consistently enforced, and not a pretext to punish protected pay talk.

If your pay practices are defensible, you should be able to defend them. If they are not, the spreadsheet is not the problem. Your pay practices are.

WIRTW #799: the 'inclusion' edition

2026-05-29T08:57:54.358-04:00

Is it too much to ask a school to provide a gluten-free treat for my son?

Donovan has Celiac disease. The school has known of his autoimmune disease since he started there in kindergarten. (He just finished 11th grade.)

Yesterday, the school provided cupcakes to the entire upper school to celebrate the end of finals.

That is, the entire upper school except for my son and the few others who cannot eat gluten, because no gluten-free treats were provided. Nor did the school let us know in advance so that we could send something of our own.

No one is asking for special treatment. Quite the opposite. We're asking for equal treatment. We're asking that students with medical dietary restrictions be given the same opportunity to participate in the small moments that help build community and belonging.

What makes this especially frustrating is how easy the accommodation would have been. Gluten-free cupcakes are not rare. They're not difficult to find. And if obtaining them wasn't feasible, a simple heads-up to affected families would have solved the problem.

This is exactly why inclusion matters, despite what current resident of the White House wants us to believe. Inclusion isn't about ideology. It's about making sure people don't feel invisible.

Yesterday, Donovan felt forgotten. He felt like no one cared enough to think about him. Whether that was anyone's intent is beside the point. The impact was the same.

No one should feel that way at school. No one should feel that way at work.

The best schools and the best employers understand that belonging is built in the small moments. It's created when leaders take the extra step to make sure everyone can participate. It's reinforced when people with disabilities, medical conditions, religious obligations, or other differences aren't treated as afterthoughts.

Inclusion is not measured by mission statements, diversity committees, or carefully crafted website language. It's measured by whether people think about those who might otherwise be left out. A cupcake at the end of finals may seem trivial to most students. But when everyone else is celebrating together and you're the one standing on the outside looking in, the message is impossible to miss: this wasn't planned with you in mind.

Schools and employers teach lessons every day that never appear in textbooks or training manuals. This week's lesson was that some people belonged in the celebration and others were left standing outside it.

Here's what I read this week that you should read, too.

'Democracy Dies in HR' Is Great Clickbait—and Bad Management Analysis — via Improve Your HR by the Evil HR Lady, Suzanne Lucas

Who Should Investigate a Harassment Complaint? Not the Harasser. — via Eric Meyer's Employer Handbook Blog

Attendance Policy, Not "Stray Remarks," Drives Win For Employer — via Dan Schwartz's Connecticut Employment Law Blog

EEOC chair says Trump admin is 'widening' civil rights aperture — via HR Dive

Spotting the Red Flags: The Legal Risks Posed by Employer Use of AI — via EntertainHR

AI in HR: Efficiency-Maximizer or Legal Minefield? — via BeLabor the Point

What Are Your Company's AI Nightmares? — via Harvard Business Review

Company Hands Law Firm Hiring Over to AI Bot — What Could Possibly Go Wrong? — via Above the Law

Do I have to hire an employee who went scorched earth after she left? — via Ask a Manager

Seven strikes, and this employer is out — via Employment & Labor Insider

Working from home or hardly working? When WFH corner-cutting becomes misconduct — via Employment Law Worldview

Anchor Brewing Co. Will Reopen to a Beer Industry It Won't Recognize — via VinePair

Can you harass someone for being American?

2026-05-28T06:53:00.000-04:00

The EEOC does not file many lawsuits.

It receives tens of thousands of discrimination charges every year but litigates only a tiny fraction of them. Which means that when the agency does decide to sue, it is usually trying to say something bigger about its enforcement priorities.

That is what makes the EEOC's recent national origin discrimination lawsuit so interesting.

This week, the agency sued an Oregon-based construction company, alleging that Mexican employees at a New Mexico jobsite harassed American coworkers with anti-American slurs, mocked one employee because he could not speak Spanish fluently, ignored his directives, and hid his tools to interfere with his work. According to the lawsuit, when the employee complained about the harassment — first to his supervisor and then to another manager after nothing was done — he was fired the next day for going "above [the supervisor's] head."

The retaliation claim itself is not especially novel. If true, firing an employee for complaining about workplace harassment plainly violates Title VII.

But the EEOC's decision to elevate this case into federal litigation feels much more significant than the underlying legal theory.

Because if we're being honest we all understand that this lawsuit has all the hallmarks of political theater.

The EEOC appears eager to send a message that it is protecting "American workers" too, particularly amid broader political fights over immigration, identity, language, and workplace demographics. The agency even tied the announcement to "Project Firewall," a joint EEOC–Department of Labor initiative focused on combating discrimination against American workers.

Just so there is no misunderstanding about the law, Title VII absolutely supports the EEOC's position here. Title VII prohibits discrimination because of national origin, and "American" qualifies just as much as Mexican, Indian, or Canadian. Mocking employees for not speaking another language, excluding workers from communications, refusing to cooperate with supervisors because of their ethnicity or national origin, or tolerating nationality-based slurs can all create Title VII exposure. The law does not pick favorites; national origin discrimination is national origin discrimination, regardless of who the target happens to be.

Still, it is fair to ask why this particular case warranted one of the EEOC's limited litigation slots and the use of its limited litigation budget.

Nothing about the allegations suggests some widespread epidemic of anti-American discrimination sweeping American workplaces. Cases involving immigrants, foreign-born workers, ethnic harassment, and language restrictions remain vastly more common.

Which is why this lawsuit feels less like a response to a growing workplace crisis and more like a carefully selected vehicle for a political and cultural message.

That does not make the lawsuit meritless. But it does make the EEOC's motives worth discussing and criticizing.