Specifically, the EEOC identified ten actions it intends to pursue, including regulatory proposals to rescind the Uniform Guidelines on Employee Selection Procedures (UGESP), eliminate the annual EEO-1 report, and withdraw long-standing interpretive guidance on affirmative action and national origin discrimination. The EEOC’s regulatory agenda, as released in its latest submission in the federal Unified Agenda of Federal Regulatory and Deregulatory Actions, is a statement of the agency’s intent, but is not a change in existing law.

Quick Hits

• The regulatory agenda released signals the agency’s intent. These are planned actions at the proposed or final stage. The first, the rescission of the 1979 affirmative action guidelines, occurred on July 6, 2026, via a final interpretive rule published in the Federal Register, but most of the agenda, including the more consequential proposals for employers, has not been issued, and several items must still go through notice and comment before they take effect.
• Title VII remains unchanged. Every rescission on the EEOC’s regulatory agenda withdraws an agency guideline or report. Title VII, including its disparate-impact framework, remains in force and enforceable by private plaintiffs and state agencies.
• Rescinding the Uniform Guidelines removes the employer’s validation safe harbor while leaving the statutory disparate-impact liability intact. Employers may wish to keep collecting and analyzing workforce data and retaining validation records, all under attorney-client privilege, because the potential legal exposure persists.

What Was Published and What It Is

Each spring and fall, the federal government publishes the Unified Agenda of Federal Regulatory and Deregulatory Actions, and agencies contribute their regulatory plans identifying rules scheduled for review, development, or finalization over roughly the next twelve months. The agenda provides transparency into an agency’s priorities. It does not carry legal force. An entry on the agenda is a plan to regulate, not a regulation. Further, the dates listed in the agenda are aspirational in nature, rather than hard-and-fast deadlines.

Under the Administrative Procedure Act, a substantive rule generally does not bind anyone until it has completed the required process and been published by the Office of the Federal Register with an effective date. Most final rules carry a minimum thirty-day delay before taking effect. Proposed rules must first go through a public comment period, and an agency can modify, delay, or abandon a proposal in response to comments or intervening events. Recent experience underscores the point: an approval briefly posted to the government’s own review website in June 2026 was corrected within days. Agenda entries and even completed Office of Management and Budget (OMB) actions can shift. Acting as though a proposal is already law risks noncompliance with obligations still in force, wasted effort, and exposure if the rule changes or does not survive. Nevertheless, the regulatory agenda may inform and educate employers on enforcement priorities and legal interpretations adopted by the EEOC.

The Ten Items

The agenda’s ten EEOC items fall into two groups by stage. Items at the final rule stage are further along; items at the proposed rule stage must still complete the notice-and-comment process. Interestingly, EEOC has not made any of the entries listed in the final rule stage available for public comment.

Selection-Procedure Rescissions (UGESP)

The two most consequential items for workforce analytics concern the Uniform Guidelines on Employee Selection Procedures (UGESP), and they are on different tracks. The first (RIN 3046-AB43) would rescind the interpretive rulemaking portions of UGESP, the long-standing validation framework that tells employers how to demonstrate that a selection procedure with an adverse impact is nonetheless job-related and consistent with business necessity. The RIN places it at the final rule stage, with the agenda projecting a final action in November 2026 and an effective date in January 2027; however, no final rule has yet been issued. The EEOC’s own abstract states that this action “would not impact other agencies’ interpretation and application of UGESP,” a limitation on the rescission’s reach that appears in the entry itself.

A separate proposal (RIN 3046-AB45) would rescind the UGESP recordkeeping requirements, the obligation to retain validation documentation, and the requirement to retain records permitting analysis of selection procedures by race, sex, and ethnicity. It is only at the proposed stage and must still go through the notice-and-comment process.

The practical significance is narrower than the headline suggests. Even if both are finalized, Title VII of the Civil Rights Act of 1964’s prohibition on discrimination and its statutory disparate-impact framework, codified in the 1991 Civil Rights Act, remain in place. What the rescissions remove is the agency’s roadmap for validating a challenged selection procedure, not the underlying liability. An employer with a selection procedure that produces an adverse impact still faces exposure from private plaintiffs and state regulators. Attorney-client privileged self-analysis may become more valuable with less official guidance.

Disparate impact is a statutory burden-shifting framework: once a plaintiff shows that a particular selection procedure causes a disparate impact, the employer must prove the procedure is job-related for the position in question and consistent with business necessity. Both halves of that framework, the plaintiff’s claim and the employer’s defense, live in the statute, and neither is removed when the EEOC withdraws its guidelines. What UGESP supplied was not the defense itself but the standardized method for proving it: a defined validation methodology and an agency-sanctioned framework that courts had long treated as the accepted way to demonstrate business necessity. Rescinding the guidelines does not eliminate the business-necessity defense, but it withdraws the safe harbor and the validation roadmap employers relied on to establish it.

One question remains genuinely open: whether courts will continue to treat UGESP’s validation principles as persuasive even after the guidelines are rescinded. Those principles reflect decades of validation science and Supreme Court of the United States precedent, and they may well continue to inform judicial analysis of business necessity as a matter of established practice, regardless of the regulation’s status. That uncertainty is itself a reason for caution. An employer that dismantles its validation records now, on the assumption that they no longer matter, may find them essential to a defense that still exists and may still be judged by the same standards.

EEO Reporting Rescission (EEO-1 and Companion Reports)

Another EEOC regulatory proposal (RIN 3046-AB37) would rescind the EEO-1 and its companion reports (EEO-2 through EEO-5) at 29 C.F.R. 1602. The EEO-1, which is filed annually, requires private-sector employers with one hundred or more employees to report employee data by job category and by sex, race, and national origin. The agency frames these as agency-created data collections that Title VII authorizes, but does not require, imposing a significant burden. The EEOC cites an estimated 5.2 million reporting hours and roughly $273 million in annual employer costs from its May 2023 Paperwork Reduction Act (PRA) notice. The agenda also notes that, with the revocation of Executive Order 11246, the EEOC no longer has authority to collect contractor data for the Office of Federal Contract Compliance Programs (OFCCP) through the EEO-1.

This proposal is expected to be released in July 2026, with a comment period projected to run into September 2026 (though, as noted above, these dates are prone to delay). As a practical matter, the proposal raises questions about the timing of the 2025 EEO-1 filing cycle and whether those reports will ultimately be collected. Employers should not assume current reporting obligations have changed until the EEOC takes further action. Rescinding the report also does not eliminate the separate duty to collect and maintain applicant and workforce data, and the agency has continued to obtain such data through enforcement and to penalize employers that lack these records.

Interpretive-Guideline Rescissions (Affirmative Action, National Origin, and Sex Discrimination)

Three items withdraw older interpretive guidance that the EEOC views as outdated. The first (RIN 3046-AB39) rescinds the 1979 affirmative action interpretive rule as inconsistent with intervening case law. This is the first of the agenda items to reach publication: the rescission was published in the Federal Register on July 6, 2026, confirming that the agency is moving on its final-stage items on the timetable the agenda projected. A second (RIN 3046-AB40) rescinds the 1980 national origin guidelines, and the agency’s stated rationale is instructive for the broader theme: it explains that the guidelines’ presumption that English-only rules can violate Title VII conflicts with the 1991 amendments, which place the burden on the plaintiff to prove that a specific practice causes a disparate impact. In other words, the agency is grounding the rescission in the statutory disparate-impact framework, the very framework that survives all of these changes. A third (RIN 3046-AB44) rescinds the appendix to the sex-discrimination guidelines, a 1979 interpretation of the Pregnancy Discrimination Act that predates the 2022 Pregnant Workers Fairness Act (PWFA). All three are at the final stage.

Pregnant Workers Fairness Act Revisions

A proposal (RIN 3046-AB36) would revise the EEOC’s PWFA regulations, including the interpretation of “pregnancy, childbirth, or related medical conditions.” It is at the proposed stage, with an NPRM projected for November 2026 and comments due in January 2027. Because this is a revision to regulations implementing a statute, employers may wish to watch the specific regulatory text closely when the NPRM issues (though any changes to the existing implementing regulations would only become effective after the rule is finalized).

Administrative Items (Records, Fair Employment Practice Agencies, and Notice-Posting Penalty)

Three of the regulatory agenda items are administrative. A records proposal (RIN 3046-AB38) would revise the availability-of-records rules, including public reading room requirements and charge-file requests. A procedural rule (RIN 3046-AB41) would move the list of designated fair employment practice agencies—state and local agencies that often partner with the EEOC to enforce antidiscrimination laws—from the regulation to the agency’s website. A final item (RIN 3046-AB42) is the annual inflation adjustment to the notice-posting penalty, a routine statutory requirement. These carry a limited direct compliance impact for most employers.

Two Cautions the Agenda Does Not Mention

Two risks sit outside the four corners of the agenda but bear directly on how employers may wish to respond.

The first concerns the state-law implications. Every item on this agenda is federal deregulation, but state and local law are moving in the opposite direction in some areas, with some existing laws and enactments that are more protective than federal law. As the EEOC withdraws federal guidelines and proposes to end federal reporting, a growing number of jurisdictions are expanding pay-data reporting, mandating bias audits for automated hiring tools, and applying their own disparate-impact standards through active state enforcement. An employer that reads the federal rollback as a general green light and eases its compliance posture accordingly may step directly into state and local exposure that the federal changes do nothing to reduce. For multistate employers in particular, the practical compliance floor is increasingly set by the most demanding jurisdiction, not by federal law.

The second is the risk of treating a rescinded requirement as a reason to discard records. Even where a recordkeeping obligation is withdrawn, an employer’s litigation hold duties and its practical need to defend against claims do not disappear. Records that a rescinded rule once required may remain essential to defending a disparate treatment or impact claim, a pay-equity challenge, or a systemic investigation, and destroying them because the retention mandate has lapsed can create spoliation risk and strip an employer of its own best evidence. The end of a requirement to keep records is not permission to purge them.

Next Steps

The recurring theme across all ten items is that a plan to regulate is not a regulation. Employers may wish to consider the following:

• Not dismantling compliance infrastructure in anticipation. Because none of these items changes current law, discontinuing data collection, altering selection-procedure validation practices, or unwinding programs now may create risk under obligations that remain fully in force.
• Continuing to collect and analyze workforce data under privilege. The statutory disparate-impact framework and private and state-law claims survive every item on this list. Privileged, counsel-directed analysis remains the most reliable way to understand and manage exposure, and it becomes more important as official validation guidance recedes.
• Retaining validation and workforce records. Even where a retention requirement is proposed for rescission, existing litigation-hold duties, and the need to defend claims may make those records essential. Rescission of a requirement is not a reason to destroy the underlying documentation.
• Weighing the cost of reversal. Agency positions can be litigated or revisited by a future administration, as prior guidance has been. An employer that dismantles infrastructure now may have to rebuild it later, and the cost of overcorrecting and reversing is real.
• Monitoring the proposed-stage items and their comment periods. The EEO-1 rescission, the UGESP recordkeeping rescission, the PWFA revision, and the records-availability revision must all go through a notice-and-comment process, and the final text may differ from the proposal, so building to a proposed rule is premature. Employers and trade associations may wish to consider whether to submit comments.
• Tracking effective dates, not agenda dates. The agenda’s projected dates are planning estimates. Employers should not assume that any current obligation has changed until the EEOC takes further action, because obligations change only when a final rule is published with an effective date, and most carry a delay before taking effect.
• Distinguishing the guideline from the statute in internal communications. Where internal stakeholders may read headlines as “disparate impact is gone,” counsel may wish to clarify that the theory remains statutory and enforceable regardless of the guidelines’ status.
• Conducting this assessment under privilege. An employer’s own analysis of how these changes affect its exposure is exactly the kind of candid self-assessment that can become discoverable. Employers may wish to route that analysis through counsel for the purpose of legal advice.

The EEOC’s regulatory agenda tells employers where the agency intends to go. It does not tell them the law has changed, because it has not. A steady, well-documented, privileged compliance posture is the surest footing while these proposals move through the process, if they move at all.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Compliance, Governmental Affairs, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• The New York Court of Appeals clarified that, pursuant to New York Labor Law § 220, contractors on public projects in New York must pay prevailing wages even if the contract does not promise to pay prevailing wages.
• The court found that any agreement in a public works contract to shorten the statute of limitations governing third-party claims for prevailing wages is not enforceable.
• Prevailing wages may apply to work performed on state-funded projects and federally funded projects.

Background on the Case

In this case, a company employed technicians who install, maintain, inspect, test, repair, and replace fire alarms, fire sprinklers, and security system equipment. The company entered contracts for fire alarm testing and inspection services with various New York public works projects. The contracts included a clause stipulating that no lawsuits could be brought against the company more than one year after accrual of the cause of action. Some contracts indicated that prevailing wages were not required, and some contracts indicated that a revised agreement would be needed if prevailing wages applied. Other contracts were silent on the matter of prevailing wages.

A group of technicians brought a class action against the company, claiming failure to pay prevailing wages and required overtime pay under the Fair Labor Standards Act (FLSA) and New York law. This included a third-party beneficiary breach of contract claim.

The company argued that the contracts did not explicitly confirm that the plaintiffs were entitled to prevailing wages. It also argued that the claims were time-barred due to the shortening of the statute of limitations in the contract, and the plaintiffs’ testing and inspection work is not subject to the prevailing wage requirements under New York Labor Law § 220 (NYLL).

Court Rulings

In February 2020, the U.S. District Court for the Northern District of New York granted the company’s motion for partial summary judgment on the prevailing-wage-related claims. However, in September 2025, the U.S. Court of Appeals for the Second Circuit held that the plaintiffs were entitled to prevailing wages in part because their work qualified as construction, maintenance, or repair work.

The Second Circuit then certified two questions to the New York Court of Appeals for review and determination. First, whether “the promise to pay prevailing wages is implicit in every public works contract so that individuals employed on public works projects may sue their employers for breach of contract to enforce the prevailing wage requirement under [Labor Law] § 220 even if the employer’s written contract does not include the statutorily required promise to pay prevailing wages.” Second, whether “agreements to shorten the statute of limitations in public works contracts to one year [are] enforceable against works bringing third-party beneficiary breach of contract claims to enforce the prevailing wage law,” which is governed by a three-year statute limitation. The answer from the New York Court of Appeals was yes to the former and no to the latter.

As to the first question, the court held that Labor Law § 220 requires that all public work contracts contain a provision that a worker shall be paid “not less than the prevailing rate for a day’s work in the same trade or occupation in the [relevant] locality within the state.” Thus, the “the statute’s promise to pay prevailing wages is inserted into every covered public works contract by operation of law for covered workers’ benefit,” regardless of the actual language contained in the contract. The court held that because this promise was for the benefit of covered workers, individuals employed on public works projects were third-party beneficiaries who could sue their employers for prevailing wages.

The New York Court of Appeals noted that, “under normal circumstances,” parties may prescribe a shorter statute of limitations by written agreement. “However, in the unique context of third-party claims to enforce Labor Law § 220’s prevailing wage requirements, the contractual benefit flows from a statutory comment.” The court reasoned that “to allow contracting parties to limit workers’ ability to recover prevailing wages would be plainly inconsistent with the statute’s purpose.” Accordingly, any agreement to shorten the three-year statute of limitation governing third-party prevailing wage claims is not enforceable.

Key Takeaways

Contractors that work on public projects in New York may wish to carefully review the language concerning prevailing wages in their contracts. Going forward, public works contracts in New York will be presumed to provide prevailing wages, and any provisions attempting to shorten the limitation period for claims over prevailing wages will not be enforceable.

Ogletree Deakins’ Wage and Hour Practice Group will continue to monitor developments and will post updates on the Construction, Government Contracting and Compliance, New York, and Wage and Hour blogs as additional information becomes available.

Leslie A. Lajewski is a shareholder in Ogletree Deakins’ Morristown office.

Steven J. Luckner is a shareholder in Ogletree Deakins’ Morristown office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• Eleven states and Washington, D.C., require employers to give time off for parents to attend certain school activities for their children.
• Employees can take leave under the FMLA to attend a meeting about their child’s individualized education program (IEP).
• Employers could be liable if they allow software applications or GPS-enabled attendance trackers to penalize workers for taking legally protected leave.

California, Illinois, Indiana, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont, and Washington, D.C., have laws mandating time off for school activities.

These laws vary in scope and application, potentially making legal compliance complicated for multistate employers. For example, Rhode Island requires employers with at least fifty employees to provide eligible employees with ten hours of unpaid leave per year to attend school conferences or other school activities for their child, foster child, or legal ward. A new law in Indiana requires employers with at least one employee to provide unpaid leave for employees to attend an attendance conference or case conference for their child, foster child, or stepchild, but it does not specify a certain number of hours. In Massachusetts, employees who qualify for Family and Medical Leave Act (FMLA) leave can use the Small Necessities Leave Act not only for their children but also for an elderly relative’s medical appointment or appointments related to elder care. For remote employees, the state laws where the employee is performing work generally apply.

Under the FMLA, covered employees are entitled to unpaid time off to attend a school meeting to discuss their child’s individualized education plan (IEP). School-aged children may receive an IEP if they have a disability, such as dyslexia, autism, speech impairment, or hearing impairment.

For employers that use geofenced mobile apps, biometric scanners, or other digital technologies for attendance verification, it may be necessary to program these technologies so that employees are not penalized for taking legally protected leave. Ensuring that there is a manual way for an employee or an HR representative to correct or adjust a time entry may help to prevent penalties for taking legally protected leave.

Next Steps

Employers may wish to review and update their attendance policies and time off policies to ensure compliance with local, state, and federal laws regarding leave for school activities. Executing decisions about attendance penalties and leave for school activities in a fair and consistent manner may help to reduce the risk of discrimination lawsuits based on gender, disability, or other protected characteristics.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Leaves of Absence blog as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state leave laws on school activity and visitation. Premium-level subscribers have access to comprehensive law summaries; Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Tina M. Bengs is a shareholder in Ogletree Deakins’ Chicago office.

Lisa Stephanian Burton is a shareholder in Ogletree Deakins’ Boston office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• In Martinez v. T. Slack Environmental Services, Inc., the Superior Court of New Jersey Appellate Division ruled that workers can bring a representative action under the state’s Wage and Hour Law, Prevailing Wage Act, and Earned Sick Leave Law without satisfying standards for a class action.
• The court found a two-year statute of limitations should apply to the employees’ overtime claims and earned sick leave claims, but a six-year statute of limitations should apply to their prevailing wage claims.
• The case was remanded to a lower court for further proceedings.

Background on the Case

T. Slack Environmental Services, Inc., is an environmental contracting and remediation business in New Jersey. In February 2020, Juan Martinez sued T. Slack for violations of the New Jersey Prevailing Wage Act (NJPWA), the New Jersey Wage and Hour Law (NJWHL), and the New Jersey Earned Sick Leave Law (NJESLL), both individually and on behalf of other hourly employees.

On public projects, Martinez performed work classified as Class B (meaning heavy physical labor) and Class C (meaning light-duty work) and should have been paid the prevailing wage rate under the NJPWA. However, he was paid at a lower hourly rate when working on private projects. During weeks in which Martinez performed both public and private work, he was paid at the lower, private rate, rather than a blended rate reflecting both types of work. When he performed work under different titles, such as laborer and ironworker, within the same week, he was paid overtime at the lower laborer rate instead of the weighted average rate based on both titles.

In addition to miscalculation of wages and overtime pay, Martinez claimed that he worked “off-the-clock” hours, including driving equipment to and from the worksite and the company headquarters, loading and unloading his truck, and traveling to and from the worksite. He argued these activities constituted compensable time under both the NJPWA and the NJWHL. He also alleged that earned sick leave was calculated using the lower, private wage rate, rather than a blended rate reflecting both public and private rates, during weeks in which he and other employees worked more than forty hours.

The company argued that Martinez did not satisfy the criteria for a class action, that he was not an adequate class representative, and that the putative class was not numerous enough because the company employed only fifteen putative class members during the years in question.

In December 2024, the Superior Court of New Jersey Civil Division (Middlesex County) certified the matter as a representative action and designated a six-year lookback period for overtime claims from February 28, 2014, to February 28, 2020. On appeal, the company argued that a two-year statute of limitations should apply.

Appellate Division’s Ruling

Citing its recent decision in Cano and Bonelli v. County Concrete Corp., the Appellate Division concluded that the case was properly deemed a representative action, and that a class certification was not required in this situation under the NJPWA, the NJWHL, or the NJESLL. The court explained that the NJPWA “permits a worker ‘to maintain such action for and on behalf of [them]self or other work[ers] similarly situated, and such work[er] and work[ers] may designate an agent or representative to maintain such action for and on behalf of all work[ers] similarly situated.’” The court held that the NJPWA “addresses the similar concerns of the WHL and the ESLL” and, as such, determining whether a representative action could be pursued or a class certification was required should be resolved “by the same standard.” While the company argued that the federal Fair Labor Standards Act (FLSA) class certification opt-in process should apply, the court rejected that contention, finding that neither the NJWHL nor the NJESLL contained “language comparable to the FLSA banning representative actions.”

The Appellate Division noted that the state legislature amended the NJWHL to add a six-year statute of limitations, effective August 6, 2019. Because Martinez’s claims arose prior to August 6, 2019, the appeals court concluded that the lower court improperly applied a six-year lookback period for the WHL and ESLL claims in this case. It held that an earlier two-year statute of limitations applied.

As to the NJPWA claims, however, the court found that they were comparable to breach of contract claims, which are subject to a six-year statute of limitations. The NJPWA “does not specify a look-back period or statute of limitations for civil actions,” the court stated. “In the absence of such limitations, courts apply the general limitations provision governing that category of claims.”

Key Takeaways

Employers in New Jersey that conduct work on public projects may wish to carefully evaluate their policies and practices regarding prevailing wages. This case shows there is a new heightened risk of representative actions against employers that fail to pay prevailing wages when legally required. It also indicates that employees may bring representative actions under the NJWHL, the NJPWA, and the NJESLL, and illustrates the importance of distinguishing between representative actions under state law and class actions under the FLSA.

Ogletree Deakins’ Morristown office and Wage and Hour Practice Group will continue to monitor developments and will post updates on the Class Action, New Jersey, and Wage and Hour blogs as additional information becomes available.

Leslie A. Lajewski is a shareholder in Ogletree Deakins’ Morristown office.

Steven J. Luckner is a shareholder in Ogletree Deakins’ Morristown office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The EEOC released a draft strategic plan for FY 2026–2030 on July 1, 2026, with public comments due by July 19, 2026.
• The draft narrows or removes several priorities carried over from the current FY 2022–2026 plan, most notably around systemic enforcement, the agency’s own diversity-related workforce commitments, and AI in hiring.
• Employers may wish to review the draft now, since it signals how the Commission intends to measure and prioritize its enforcement, outreach, and operational work through 2030.

Strategic plans are required for federal agencies under the Government Performance and Results Act Modernization Act. The EEOC’s strategic plan sets the framework the Commission uses to prioritize enforcement, outreach, and internal operations over a multiyear period. The draft retains the same three overarching goals as the current plan (enforcement, outreach and training, and organizational excellence) but revises several of the underlying performance measures and narrative commitments in ways employers may want to note.

Noteworthy Changes

The draft strategic plan continues to align with stated priorities, including advancing equal employment opportunity for all while fulfilling its “obligation to be impartial as it investigates charges in the private sector.” The draft strategic plan ties the Commission’s flagship systemic enforcement measure to a combined outcome: achieving “targeted equitable relief and at least $1 million in monetary relief” in 80 percent of systemic investigations where cause is found by the EEOC. The current strategic plan instead measures systemic enforcement through staffing and training commitments, including a requirement that every district maintain at least two dedicated Enforcement Unit systemic staff members. Employers involved in systemic pattern-or-practice disparate treatment matters may see a Commission that pursues fewer, more selective systemic cases while seeking larger recoveries in the cases it does bring. Employers may see more Commissioner’s charges, more requests for information and more class-based investigations.

The current strategic plan ties the agency’s own hiring and workforce practices to Executive Order 14035 and includes specific diversity, equity, inclusion, and accessibility commitments. The draft removes these references entirely from its organizational excellence goal, consistent with the Commission’s broader shift in posture away from diversity-related initiatives reflected in its recently adopted National Enforcement Plan.

The draft adds new language recognizing that generative AI will affect how applicants apply for jobs, how employers screen candidates, and how the agency itself operates. However, the draft does not include any corresponding performance measure or enforcement priority tied to AI-assisted employment decisions. Nevertheless, the EEOC has cautioned employers to understand and audit AI to ensure discrimination or other unlawful acts are not occurring as AI usage will not excuse liability. Employers using AI-assisted screening or selection tools may also wish to continue monitoring state and local requirements, several of which have moved into this space in the absence of active federal guidance.

The draft also narrows the current plan’s outreach commitments to vulnerable and underserved populations, replaces the U.S. Department of Labor’s Office of Federal Contract Compliance Programs with its Wage and Hour Division as a named outreach partner, and sets new numeric targets for reducing intake processing times. As the EEOC strives to reduce the time taken to process intake inquiries by 10 percent, employers may see quicker turnaround time on receiving notices of charges and charges.

Next Steps

The public comment period on the draft strategic plan closes July 19, 2026. Employers may wish to consider the following:

• Submit comments. Employers and trade associations with views on the draft’s enforcement priorities, particularly the revised systemic enforcement measure, have until July 19 to submit comments.
• Policy review in light of enforcement posture. Given the Commission’s continued emphasis on intentional discrimination theories, employers may want to review workplace policies, including diversity-related programs, for clear, documented, and consistently applied selection criteria and audit practices under protections of the attorney-client privilege to minimize legal risk.
• Continue monitoring AI-related developments. Because the draft plan does not fill the gap left by the Commission’s prior AI hiring guidance, employers using algorithmic or AI-assisted selection tools may wish to track state and local requirements directly and consider voluntary, proactive, and privileged audits for bias.
• Watch for the final plan. The Commission is expected to finalize the strategic plan after the comment period closes, and the final version may differ from the draft discussed here.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Compliance, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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SCOTUS: FTC Removal Protections Are Unconstitutional. On June 29, 2026, the Supreme Court of the United States ruled that the provision of federal law limiting the president’s ability to remove commissioners of the Federal Trade Commission (FTC) only for “inefficiency, neglect of duty, or malfeasance in office” violated the United States Constitution’s separation of powers. The ruling was the result of former FTC commissioner Rebecca Slaughter’s legal challenge to her removal from the Commission by President Donald Trump in March 2025. Because “[t]he FTC unquestionably exercises executive power, and must therefore be controlled by the Chief Executive,” Chief Justice John Roberts wrote, “It follows, then, that Slaughter served as the President’s subordinate at the FTC—and that the President was entitled to cut her tenure short.”

The decision will undoubtedly play a significant role in resolving ongoing legal challenges to the president’s ability to remove members from the National Labor Relations Board and the U.S. Equal Employment Opportunity Commission (EEOC). Ultimately, the Supreme Court’s Slaughter decision vests more power in the executive branch, with at least one result likely to be more dramatic policy swings with each new administration. Brian E. Hayes and Zachary V. Zagger have more on the decision.

SCOTUS Strikes Down Birthright Citizenship EO. On June 30, 2026, the Supreme Court of the United States struck down Executive Order (EO) 14160, “Protecting the Meaning and Value of American Citizenship.” The EO stated that children born of persons unlawfully or temporarily present in the United States were not subject to the jurisdiction of the United States, and therefore not entitled to U.S. citizenship under the Fourteenth Amendment and federal law. In other words, pursuant to the EO, a child born in the United States who did not have at least one parent who was a U.S. citizen or a lawful permanent resident would not qualify as a citizen by birth. The majority of the Court ruled that the executive contravened the Fourteenth Amendment, which focuses on the location of the individual’s birth and says nothing about the immigration status of the individual’s parents. (Section 1 of the Fourteenth Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”). The majority wrote, “Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.” Nicole Fink and Philip K. Sholts have the details.

President Trump Nominates Acting Labor Secretary to Officially Lead DOL. President Trump will nominate Deputy Secretary of Labor Keith Sonderling to take the reins as U.S. secretary of labor. Sonderling has served as acting labor secretary since April 2026, when Lori Chavez DeRemer, the immediate past labor secretary, resigned. Sonderling is well-versed in many of the employment issues facing employers today, having previously served as an acting wage and hour administrator at the U.S. Department of Labor (DOL) and as an EEOC commissioner.

EEOC Rescinds Affirmative Action Guidelines. The EEOC voted this week to rescind its interpretive guidelines titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as Amended.” The Commission, which forecasted this action last month, did not solicit public feedback on the matter. According to an EEOC press release, the guidelines “ran afoul of the text of Title VII and contradicted Supreme Court case law that has developed over the four decades since the Affirmative Action Guidelines were issued.” Of course, federal contractors remain obligated to prepare affirmative action plans as required by Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act. These federal statutes remain in effect, notwithstanding the EEOC’s rescission of its affirmative action guidelines or President Trump’s issuance of EO 14173 in January 2025.

America 250. In observance of the 250th anniversary of the United States’ founding, here are some fun facts to get you in the patriotic spirit:

• Independence Day is really July 2, 1776. This was the day the Continental Congress passed a resolution declaring the colonies’ independence from Great Britain. When the Congress subsequently felt the need to explain the vote to the public, the Declaration of Independence was drafted and adopted two days later, on July 4, 1776.
• The only two signatories to the Declaration of Independence who later became president of the United States—John Adams and Thomas Jefferson (respectively, the nation’s second and third presidents)—both died on the same day: July 4, 1826, the fiftieth anniversary of the adoption of the Declaration of Independence.
• Five years after Adams and Jefferson passed, James Monroe, who served as the fifth president of the United States from 1817 to 1825, died on July 4, 1831.
• Calvin Coolidge, who served as the United States’ thirtieth president from 1923 to 1929, was born on July 4, 1872—the only U.S. president to share a birthday with the United States.
• Six people signed both the Declaration of Independence and the United States Constitution: Benjamin Franklin, George Read (one of Delaware’s first U.S. senators), Roger Sherman (who later represented Connecticut for a term in the U.S. House of Representatives, followed by two years in the U.S. Senate), Robert Morris (the “Financier of the Revolution” and one of Pennsylvania’s first U.S. senators), George Clymer (an early abolitionist from Pennsylvania), and James Wilson (one of the first justices appointed to the Supreme Court by President George Washington). Thomas Jefferson and John Adams signed the Declaration of Independence, but did not sign the Constitution, as they were overseas serving as ministers to France and Great Britain, respectively.

Although Massachusetts became the first state to officially recognize the Fourth of July as a holiday in 1781, July 4 did not become a federal holiday until 1870. Even then, the Fourth remained an unpaid holiday for federal employees until 1938.

The Buzz will return to its regularly scheduled programming on Friday, July 10, 2026.

Quick Hits

• On June 5, 2026, the federal district court granted a preliminary injunction requested by twenty states and Washington, D.C., which are challenging the USDA’s conditions requiring funding recipients to certify compliance with the administration’s policies on antidiscrimination and not to use money in ways contrary to the federal government’s positions on “gender ideology,” women’s and girls’ sports, and immigration. The judge explained the decision in an opinion released on June 24, 2026.
• The court barred the USDA from enforcing the new conditions or taking adverse action against the states and Washington, D.C.
• The USDA’s funding conditions are part of a broader, governmentwide effort to embed anti-DEI compliance requirements into federal funding relationships.

Four Key Funding Conditions

The USDA’s antidiscrimination policy condition requires funding recipients to certify compliance with “all federal antidiscrimination laws, regulations, and policies,” including recent executive orders banning what the administration considers “illegal” DEI practices, specifically Executive Order 14168 and Executive Order 14173, and expressly warns that noncompliance may result in False Claims Act liability. The “gender ideology” condition prohibits the use of federal funds in ways that “promote gender ideology.” The sports condition prohibits directing funds toward programs that “deprive women and girls of fair athletic opportunities” or permit “male competitive participation in women’s sports.” The immigration condition prohibits directing funds toward programs that “allow illegal aliens to obtain taxpayer-funded benefits.”

Reasoning From the Court

In its June 24, 2026, memorandum explaining the preliminary injunction, the court found that the plaintiff states are likely to succeed on both their Spending Clause and the Administrative Procedure Act (APA) claims, and noted that the Spending Clause violations alone warranted the injunction.

On the Spending Clause, the court identified three independent grounds. First, the conditions are unconstitutionally vague. The court found that the policy condition’s requirement that recipients comply with all federal antidiscrimination “policies” fails to identify what those policies are or where they can be found, and that even the enumerated executive orders “state on their own terms that they apply only to the federal government.” The gender, sports, and immigration conditions fared no better, with the court finding the immigration condition alone “raises more questions than it answers,” including whether grantees must verify immigration status, which would conflict with federal law requiring school lunch eligibility regardless of immigration status.

Second, the conditions are not reasonably related to the federal interest in the programs they govern. When asked at oral argument how the sports condition relates to a program to eradicate invasive insects, the government argued that any prohibition on fund use would satisfy the relatedness test. The court rejected this, noting that if that argument were true, “any prohibition, no matter what the prohibition is, would be related,” which is incorrect as a matter of law. Third, the conditions are unduly coercive. The court found that the sheer scale of the threatened funding loss, $74 billion annually, crosses the constitutional line from persuasion to compulsion.

On the APA, the court found the conditions arbitrary and capricious on four independent grounds. The USDA offered no reasoned explanation connecting the conditions to the programs they govern, with the court finding that generic rationales, such as “putting America First” and “sound stewardship of taxpayer dollars” were “as circular as an Ouroboros: do as I say, because I said so.” The agency also failed to consider the conflict between the conditions and existing state and federal laws, including the Supreme Court of the United States’ holding in Bostock v. Clayton County, Georgia that firing an employee for being transgender violates federal law. The USDA failed to consider the states’ substantial reliance interests in funding they have depended upon for decades. The agency failed to consider any alternatives to an across-the-board imposition of the conditions on every program, regardless of its statutory purpose.

The court also noted that the USDA did not use notice and comment procedures before imposing the new conditions, as is typically required when an executive agency imposes a new rule. The USDA argued that its funding decisions are committed to agency discretion and not subject to APA review. The court rejected this, holding that the across-the-board imposition of the conditions, without the program-by-program balancing the agency discretion doctrine requires, is reviewable under the APA.

The conditions, while currently enjoined, apply to a variety of programs funded by the USDA, including the national school lunch and school breakfast programs, the Supplemental Nutrition Assistance Program (SNAP), and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). The USDA also funds programs for wildfire prevention, specialty crops, and agricultural research.

Next Steps

The new funding conditions will not be enforced while the case proceeds. The preliminary injunction does not extend to all USDA grant recipients and is not a final ruling on the merits of the case. The USDA could appeal the injunction ruling.

The court’s conclusion that the administration’s anti-DEI and immigration funding conditions are unconstitutionally vague and lack a reasoned basis confirms something that many employers have been navigating in practice. The administration’s policies have not drawn a clear line between lawful and unlawful DEI-related programs, hiring practices, and workforce policies, or between permissible and impermissible eligibility practices.

Employers and federal grantees may wish to consider the following steps:

• Know what you have. The injunction is temporary. Whether it holds, is reversed on appeal, or is resolved on the merits, grantees may wish to take this time to conduct a privileged audit of their DEI-related programs and employment practices.
• Map your conflicts. Employers operating across multiple jurisdictions may wish to identify where federal certification requirements conflict with state or local antidiscrimination obligations, particularly around gender identity, sexual orientation, and immigration status.
• Monitor parallel developments. The court’s analysis of what the administration’s anti-DEI and immigration funding conditions can and cannot require is likely to inform how similar conditions emerging from other federal agencies are evaluated. Employers and grantees may wish to assess those implications as agency-specific implementations continue to develop.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, and Workforce Analytics and Compliance practice groups will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

T. Scott Kelly is a shareholder in Ogletree Deakins’ Birmingham office, the co-chair of the firm’s Government Contracting and Reporting Practice Group, and the chair of the firm’s Workforce Analytics and Compliance Practice Group.

Nonnie L. Shivers is a shareholder in Ogletree Deakins’ Phoenix office and co-chair of the firm’s Diversity, Equity, and Inclusion Compliance Practice Group.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The CAI found that Metro Inc.’s facial recognition pilot meets the necessity standard of the Act respecting the protection of personal information in the private sector (the Privacy Act).
• Although it called facial recognition more intrusive than traditional video surveillance and the biometric data “sensitive,” the CAI held that the biometric bank does not “otherwise” infringe privacy under Article 45 of the Act to establish a legal framework for information technology (LCCJTI).
• Necessity turns on a structured test: the objectives must be important, legitimate, and real, and the collection must be proportionate, rationally connected, minimized, and more beneficial than harmful.

Notably, the CAI reached that result after a demanding and often critical review of the technology’s privacy risks, concluding that the project’s benefits outweigh the intrusion, subject to a two-year reporting obligation and to its separate, still-contested February 18, 2025, decision on consent.

This 2026 decision is the second chapter of the same investigation. In its February 18, 2025, decision, the CAI held that Metro’s facial recognition amounts to identity verification requiring express consent under Article 44 LCCJTI, and prohibited the bank on that basis. That ruling, which we examined in our earlier article on Québec’s restrictive approach to biometric data, remains under appeal before the Court of Québec. The 2026 decision expressly leaves it untouched. The necessity “green light” is therefore conditional: the consent prohibition still stands unless and until it is overturned.

Metro proposed a pilot in up to ten grocery and pharmacy stores that would convert surveillance images of suspected repeat offenders into biometric templates, store them in a database, and flag matches in real time. The CAI was openly skeptical: it found the accuracy evidence thin, flagged real risks of false positives and demographic bias, and warned that relying on a police report rather than a conviction creates a “presumption of guilt.” Even so, it concluded that the collection is necessary and that the bank does not otherwise infringe privacy, allowing the project to continue subject to conditions.

Under Article 5 of the Québec Privacy Act, the organisation collecting personal information must prove the collection is necessary. The CAI works in two stages. First, it asks whether the objectives are important, legitimate, and real; the “real” element demands concrete, documented problems rather than general claims. To address this, Metro provided loss estimates (roughly C$30 million in external-theft losses in 2024) together with incident logs and rising security-agent costs. This information was redacted from the decision, but was part of the analysis. It satisfied the CAI that its anti-theft, anti-fraud, and safety objectives were genuinely grounded in each targeted store.

The CAI applied a notably high threshold for approval. Organisations may wish to note that the CAI expected Metro to clearly explain not only why the tool was necessary, but also to describe the functionality of the biometric scanning process in detail. The decision reveals that the CAI identified weaknesses in certain explanations provided regarding how the systems would operate in practice. The CAI observed that these intermediaries did not appear to be aware of the real efficacy of the system, making it difficult to obtain a clear picture of the technology’s reliability.

Organisations considering biometric tools may therefore wish to carefully vet vendors at an early stage, so that if a tool comes under regulatory scrutiny, the organisation is in a position to provide clear and accurate answers about how the technology functions. It would be prudent for organisations to avoid relying solely on vendor representations and instead seek to understand the tool’s mechanics sufficiently to explain them independently to a regulator.

Second, the collection must be proportionate. Applying the Court of Québec’s Société de transport de Laval test, the CAI weighs whether the collection is rationally connected to each objective, whether the intrusion is minimized, and whether the benefits clearly outweigh the harm to the people affected.

On minimization, the CAI credited Metro’s record and commitments: it had already deployed and exhausted less intrusive measures, agreed not to keep templates where no match occurs, limited the pilot to ten identified stores, and capped retention at eighteen months. The CAI stayed wary of pooling all biometric data in one central bank and recommended centralizing only where a regional link justifies it.

Weighing benefits against intrusion, the CAI gave deterrence limited weight and treated facial recognition as a complementary “tool,” not a stand-alone “solution.” On balance, it still found the project’s practical utility outweighs the harm, while reserving the right to revisit that conclusion.

Next Steps

The decision provides a cautiously encouraging signal for organisations in Québec that collect or process biometric data: such projects can survive CAI scrutiny, but only with rigorous, well-documented justification. Beyond biometrics, the decision offers broader lessons about the CAI’s approach to privacy enforcement under Québec’s privacy legislation (notably, the Act respecting the protection of personal information in the private sector, as amended by Law 25). Employers and other organisations may wish to consider the following takeaways:

Building an evidentiary record. The CAI required Metro to document internally why facial recognition was necessary for its specific objectives, and to demonstrate that alternative tools had been deployed and found insufficient. This approach is likely to extend to other high-impact data processing activities. Employers may want to maintain contemporaneous records explaining why particular data collection practices are necessary, what alternatives were considered, and why those alternatives did not meet the organisation’s legitimate purposes. General statistics or industrywide trends will not suffice; the CAI expects location-specific and purpose-specific justification.

Vetting vendors and understanding the technology. The CAI’s investigation revealed that certain vendors and intermediaries could not adequately explain how their systems functioned, which created difficulties in demonstrating reliability. One supplier stated that he “had no idea” how the system creates facial signatures because he merely resells the technology; another could not specify error rates because the algorithm belonged to a third party. Employers deploying any technology that processes personal information may wish to conduct thorough due diligence on providers at an early stage. Employers may want to avoid relying solely on vendor representations and instead ensure the organisation can independently explain the technology’s mechanics, accuracy, and limitations to a regulator if required.

Minimising by design. The CAI credited Metro for narrowing the pilot to ten identified stores, committing not to retain biometric templates where no match occurs, and capping retention at eighteen months. For any sensitive data processing, organisations may wish to limit geographic scope, avoid unnecessary centralisation of data across locations, set short retention periods, and implement deletion protocols tied to specific triggers (such as where there is no match, no conviction, or no ongoing purpose). The CAI recommended against centralising data from physically distant or unrelated establishments, noting that broader centralisation increases the invasiveness of any surveillance.

Confronting accuracy and bias proactively. The CAI remained “perplexed” by the weak evidence of system efficacy and noted that algorithmic bias and false positives are “inherent” risks of AI-based systems, including facial recognition. For any AI or automated decision-making tool, it would be prudent to gather credible evidence of reliability, implement controls for demographic bias, and require trained human review before any consequential action is taken. The CAI accepted Metro’s commitment to human oversight as a mitigating factor, suggesting that organisations deploying similar tools may wish to build human-in-the-loop safeguards into their processes.

Minding consent and transparency obligations. This necessity ruling does not resolve the separate Article 44 LCCJTI consent question, which remains under appeal. Biometric identity verification may still require express consent, and organisations may wish to monitor the appeal closely. More broadly, the CAI expects clear transparency: Metro was required to produce detailed signage explaining the facial recognition system to individuals entering the stores. Under Law 25, employers and organisations must be prepared to provide meaningful notice about their data practices and to respond to access requests, which may include disclosing the existence of profiling or automated decision-making.

Expecting ongoing oversight. The CAI retained jurisdiction and imposed semiannual reporting for two years, with the express right to revisit its conclusion if the systems do not demonstrate sufficient efficacy or if bias or false-positive issues emerge. Continuing regulatory engagement is likely, so organisations operating high-impact data systems may want to build internal reporting processes that can satisfy such requirements. This supervisory approach may signal a broader trend under Law 25, where the CAI retains active oversight of sensitive data processing activities rather than simply granting one-time approvals.

Considering the quasi-constitutional nature of privacy protection. The CAI’s decisions reflect Québec’s position that privacy protection has quasi-constitutional status, warranting broad and liberal interpretation of protective provisions.

Ogletree Deakins’ Montréal office, Cybersecurity and Privacy Practice Group, and Technology Practice Group will continue to monitor developments and provide updates on the Canada, Cross-Border, Cybersecurity and Privacy, Retail, and Technology blogs.

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Quick Hits

• Virginia Governor Spanberger vetoed SB 378/HB 1263 on May 14, 2026, blocking legislation that would have extended collective bargaining rights to approximately 500,000 public employees across the Commonwealth.
• The vetoed bill would have repealed Virginia’s collective bargaining ban, established a Public Employee Relations Board, required mandatory good-faith bargaining over wages, hours, and working conditions, and imposed binding arbitration upon impasse.
• Virginia’s existing framework, which allows individual localities to opt in to collective bargaining for certain municipal employees, remains in effect while the governor has stated she will continue working with the General Assembly on a revised approach.

The bill passed both chambers of the Virginia General Assembly, after which the governor proposed amendments. After the General Assembly rejected the governor’s proposed amendments, the governor bucked speculation that she would sign the bill and ultimately vetoed the measure, stating she supported public-sector collective bargaining, but believed additional amendments were needed.

Overview of SB 378/HB 1263

The now-rejected bill would have repealed Virginia’s collective bargaining ban and significantly expanded the Commonwealth’s approach to public sector labor relations. Currently, Virginia law permits individual localities to opt in to collective bargaining for certain municipal employees. The bill would have overturned this framework and imposed mandatory collective bargaining for public employers. Key provisions included:

• the establishment of a five-member Public Employee Relations Board (PERB) with authority to certify bargaining units, conduct representation elections, and adjudicate unfair labor practice claims;
• mandatory good-faith bargaining, requiring public employees and certified representatives to negotiate over wages, hours, and working conditions, with binding arbitration if the parties reach an impasse;
• the creation of the Virginia Home Care Council, a new entity to serve as the public employer for individual care providers, solely for the purposes of collective bargaining, while preserving participants’ authority to hire, fire, and direct their providers;
• coverage and rights extended to state employees, local government employees, K–12 educators, and higher education service employees, with exclusions for elected officials, confidential employees, temporary workers, and the judicial branch; and
• mandatory binding interest arbitration upon impasse.

The Governor’s Proposed Amendments

Governor Spanberger proposed amendments on April 13, 2026, that, among other things, would have:

• delayed implementation for local governments from July 1, 2028, until January 1, 2030 (when the governor’s four-year term will expire);
• provided additional flexibility for public employers to account for existing budget timelines;
• narrowed the scope of bargaining from requiring bargaining over terms and conditions of employment to permitting bargaining over those terms and conditions; and
• transformed mandatory, binding interest arbitration upon impasse into a non-binding process.

Current Status and Outlook

Governor Spanberger has stated she remains committed to working with the General Assembly and stakeholders to develop a workable public-sector collective bargaining system. However, that is yet to be seen. As of now, Virginia’s current framework, which vests localities with the discretion to opt in to collective bargaining for certain employees, remains in place.

Ogletree Deakins’ Richmond office will continue to monitor developments and will publish updates on the Traditional Labor Relations and Virginia blogs as additional information becomes available.

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Quick Hits

• On June 22, 2026, the Maryland Commission on Civil Rights (MCCR) published its Elements of Proof Guidance, a comprehensive document setting forth the elements of proof the MCCR applies for claims of employment and other discrimination under Maryland State Government Article, Title 20.
• The guidance identifies thirty-five categories of employment discrimination claims—ranging from hiring, promotion, and discharge to harassment, retaliation, and genetic testing—and sets forth the specific elements required to prove each claim under Maryland law.
• While Maryland courts typically look to federal law, the guidance reveals several areas where Maryland law diverges—including additional protected classes, a lower harassment threshold, strict supervisor liability, and different accommodation standards—though it is an agency investigation tool only, and Maryland courts may disagree with the MCCR’s interpretations.

For Maryland employers, the guidance provides a valuable window into how the MCCR evaluates employment-related discrimination claims. The guidance identifies the following thirty-five employment discrimination claims and sets forth the elements required to prove each claim under Maryland law:

• Hiring
• Reasonable accommodation
• Religious accommodation
• Wages
• Benefits
• Terms
• Conditions
• Privileges
• Promotion
• Discipline
• Demotion
• Discharge
• Constructive discharge
• Reinstatement
• Qualifications
• Testing (adverse impact)
• Testing (disparate treatment)
• Training
• Apprenticeship
• Job Classification
• Layoff
• Recall
• Seniority
• Tenure
• Retirement
• Harassment (hostile environment)
• Harassment (quid pro quo)
• Sexual harassment (hostile environment)
• Sexual harassment (quid pro quo)
• Retaliation
• Unfavorable Reference
• Advertising
• Reasonable accommodation discrimination in pregnancy or childbirth
• Genetic testing
• Genetic testing (complainant refusal)

Notably, although the Maryland courts typically look to federal law for guidance in evaluating employment discrimination claims under Maryland law, the guidance also reveals several areas where the MCCR’s analytical framework differs from the federal approach. Below are some of the more significant differences between state and federal law:

1. Protected classes. Maryland law protects additional personal characteristics, including marital status, sexual orientation, gender identity, and military status, which are not protected under federal law.
2. Harassment definition. Until 2022, Maryland law was consistent with federal law in requiring conduct to be “severe or pervasive,” among other things, in order to constitute unlawful harassment. This guidance specifically removes that requirement in the following three situations involving “unwelcome and offensive conduct”: (1) submission to the conduct is made a term or condition of an individual’s employment, whether explicitly or implicitly; (2) submission to or rejection of the conduct is used as the basis for employment decisions about the individual; or (3) based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile. Maryland law also provides a separate definition of “sexual harassment” as conduct “that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature.” Again, such conduct need not be severe or pervasive under the same three situations set forth above.
3. Supervisor harassment liability. Maryland law imposes strict liability for supervisor harassment, which the guidance frames as being foreseeable or taking place within the scope of employment, considering factors such as when and where the acts took place (e.g., workplace, offsite trainings, mandatory retreats, or office parties). This differs from the federal standard, which turns on whether a tangible employment action occurred and the availability of an affirmative defense.
4. Religious accommodation. The MCCR guidance uses a “more than a de minimis cost” undue-hardship standard for religious accommodation, while federal courts now apply the more demanding standard articulated by the Supreme Court of the United States in Groff v. DeJoy.
5. Pregnancy accommodation. Maryland law obligates employers to provide accommodations for “disabilities caused or contributed to by pregnancy or childbirth,” while the federal Pregnant Workers Fairness Act requires accommodations for “known limitations” related to pregnancy, childbirth, or related medical conditions.
6. Retaliation as adverse action. The MCCR guidance lists “adverse employment action” as an element of retaliation, while retaliation under Title VII of the Civil Rights Act of 1964 uses a “materially adverse” standard, which is broader and thus typically easier for individuals to meet.

This guidance is an agency investigation tool only. Accordingly, while the MCCR uses it to evaluate claims, Maryland courts may not necessarily agree with the MCCR’s interpretation of the law. However, the guidance may be helpful for Maryland employers to consider when defending against claims before the MCCR. In responding to MCCR complaints, employers may benefit from addressing each element that the MCCR evaluates in their responses, to clearly rebut such claims within the framework that the MCCR applies.

Ogletree Deakins’ Baltimore office will continue to monitor developments and will provide updates on the Employment Law and Maryland blogs as additional information becomes available.

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