Multi-Agency Effort to Combat National Origin Discrimination Underway
Have you heard of Project Firewall? It’s not the latest anti-virus software, and it’s not an enterprise to halt the spread of an encroaching blaze. Project Firewall is the federal government’s new H-1B enforcement initiative—and it’s spreading fast.
Project Firewall “aims to safeguard the rights, wages, and job opportunities of highly skilled American workers” and, as the Department of Labor (DOL) explained in a Nov. 24, 2025, press release, it represents another step in an “ongoing project” to ensure that “employers prioritize qualified Americans when hiring” workers. But the initiative is not all carrots—it also comes with a stick: it allows for “enforcement actions to hold employers accountable if they abuse the H-1B visa program.” Moreover, Project Firewall is a multi-agency endeavor. As the press release notes, “[i]n addition to its partnership with the [Equal Employment Opportunity Commission], the [DOL] is also collaborating with federal partners including the Civil Rights Division of the Department of Justice and U.S. Citizenship and Immigration Services as part of this whole-of-government effort.”
What, exactly, are these agencies doing? The press release highlights two recent developments. The first is the release of a new technical assistance document called “Discrimination Against American Workers is Against the Law,” issued by the Equal Employment Opportunity Commission (EEOC). The second is the agencies’ “sharing information and coordinating . . . as permitted by law, to proactively combat unlawful discrimination against American workers and properly enforce the law by leveraging the full strength of the federal government.”
EEOC Chair Andrea Lucas, quoted in the press release, remarks: “With the scale of unlawful anti-American discrimination we’re seeing, robust investigation and enforcement – within the EEOC and with our federal partners – is essential to protecting America’s workforce.” We expect enforcement actions to roll in with the new year. Watch out for those headlines—and remember, this is a good time to think about potential audits, review of internal processes and coordination of company initiatives to ensure legal compliance.
Are Your Employee Investigations Legally Sound?
Do you conduct investigations of employee misconduct—or oversee others who do? Then take note of a recent opinion issued by the Sixth Circuit Court of Appeals in a case called Welch v. Heart Truss & Engineering Corp. In its opinion, the court considers and describes the sort of investigatory process that an employer may rely on in taking an adverse action against an employee.
After plaintiff Welch was reassigned from a driving role to a production-line role, graffiti started appearing on products that were sent to customers. Some of the graffiti was just smiley faces. Some of it was less suitable for work. Customer complaints about graphic graffiti started rolling in, and the employer (through its plant manager, and a supervisor) investigated. Specifically, the plant manager monitored the customer-facing goods and attempted to ascertain whether first- or second-shift employee(s) were responsible. Then, he tasked the supervisor with interviewing employees. In the course of the investigation, as the supervisor was asking another employee about the graffiti, the plaintiff spoke up to say: “I did it, what’s it hurting?” The supervisor spoke with the plant manager to relay this confession, and the plant manager terminated Welch’s employment.
After a district court granted summary judgment to the employer on Welch’s ensuing wrongful discharge claims, Welch attacked the employer’s investigation on appeal, arguing (among other things) that the plant manager had no factual basis to believe Welch was the graffiti artist, because the investigation was insufficient.
The Sixth Circuit disagreed. As the court explained: “Recall the steps [the plant manager] took to identify the culprit after learning about the graffiti: finding more examples of graffiti, figuring out that the graffiti must have originated at the factory, eliminating the second shift from suspicion, and assigning [the supervisor] to investigate the first shift. The next data point he received was [the supervisor]’s report of Welch’s confession. From this investigation, [the plant manager] formed the honest belief that Welch was responsible. Welch counters that this belief, while honest, was nonetheless unreasonable because [the plant manager] accepted [the supervisor]’s word without interviewing other witnesses or cross-referencing the graffitied job numbers to Welch’s assigned loads.”
Critically, the court rejected that argument: “[p]erhaps, as Welch suggests, [the plant manager] could have done more to confirm Welch’s guilt. But the honest belief rule does not require an ‘optimal’ investigation that ‘left no stone unturned,’” the court noted. Instead, the question is whether the “decision was ‘reasonably informed and considered.’” The court went on to explain: “there is no evidence in the record that [the plant manager] had reason to doubt the accuracy or objectivity of [the supervisor]’s statements, making his reliance reasonable.”
In other words, when an investigation allows you to make a reasonably informed and considered decision, and there is no reason to disbelieve the accuracy or objectivity of the investigator’s statements, reliance on the investigation is reasonable.
Three Things to Note About New EEOC General Counsel Nominee
A new EEOC General Counsel nominee has been named: M. Carter Crow. If appointed, Crow will direct and oversee both the agency’s strategic decisions and its enforcement operations. Specifically, Crow—in conjunction with EEOC Chair Lucas—will set litigation priorities and supervise the EEOC’s Office of the General Counsel as it engages in enforcement actions, litigation and investigations.
Three quick facts about Crow will help you understand where his leadership may take the agency. First, he’s had a long career as an employer-side employment attorney, so you can expect his policies and processes to be informed by his experience with employer perspectives on a variety of workplace issues. Second, Crow is interested in artificial intelligence (AI) and its impact on employment decisions. He recently wrote an article explaining how employers who use AI in hiring or promotional decisions can fine-tune their AI decision-making processes and mitigate potential risks. Third, Crow is particularly experienced with class actions, and his enforcement priorities may reflect this background.
