With DEI in the crosshairs of the current administration’s enforcement activities, employers need to review their organization for DEI type policies, practices and activities (even if the organization does not subscribe specifically to DEI).  The guiding principle of this audit is to prevent violations of Title VI of the 1964 Civil Rights Act that govern programs and activities receiving federal financial assistance, Title VII of the 1964 Civil Rights Act which governs the...

The Diversity Equity and Inclusion (DEI) Executive Orders have taken root and at the time of writing been upheld most recently by the U.S. Fourth Circuit Court of Appeals.  Other than the obvious programs such as employee resource groups (ERGs), hiring preferences, and worker pipeline building, what other areas of HR may DEI impact that HR needs to be aware of?

Although Executive Order 11246 is revoked, the Office of Federal Contract Compliance Programs (OFCCP)is still finding relevance.  Section 4212 (VEVRAA) and Section 503 (Disabled) Affirmative Action Plans (AAPs) are required by regulation, and OFCCP has stated that the agency will resume audits of these plans at some point.  More recently, with a new Director in place, the OFCCP may be the first line of attack against federal contractor Diversity, Equity, and Inclusion (DEI)...

The U.S. Bureau of Labor Statistics (BLS) reported that in 2023 women who were full-time wage and salary workers had median usual weekly earnings that were 84% of male full-time wage and salary workers. This situation is up 22% from 1979, the first year for which comparable earnings data are available, when women’s earnings were 62% of men’s earnings.  Per the BLS, the majority of this closing of the pay gap was between 1980 and 2003. From 2004 to 2023, the...

Neurodivergent individuals – those with autism, ADHD, dyslexia, and other cognitive differences – bring unique perspectives and strengths that can greatly benefit organizations. However, without proper support and accommodations, they may struggle to thrive. With April 2nd being World Autism Awareness Day, let’s look at how HR professionals can identify and create an inclusive environment for neurodivergent employees.

The EEOC on January 29th issued a statement that called for the reversal of former President Biden’s gender approach to EEOC complaints and investigations.  Specifically, Executive Order 14166, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” directed federal agencies to enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct...

In a case coming before the U.S. Supreme Court, the question before the court is “what do white people and other members of a majority group have to prove to win a claim for reverse discrimination?” It’s an interesting proposition because many federal courts require an additional step for a majority group to demonstrate discrimination.

Diversity, Equity, and Inclusion (DEI), sometimes expanded to include Accessibility (DEIA), has faced criticism in the media for being perceived as entitlement-driven, disconnected from the broader population, lacking genuine inclusivity, and focused on meeting quotas. During the first Trump administration, some government agencies implemented DEI training that framed all white individuals as inherently privileged and prejudiced, reportedly separating them into different rooms for...

The U.S. Federal District Court for the Southern District of Texas issued an order halting further action in an enforcement case brought by the Office of Federal Contract Compliance Programs (OFCCP) against ABM Industry Groups LLC, a janitorial service provider in Houston, Texas. The case involves allegations that ABM favored Hispanic applicants over African American applicants in its hiring practices. The court’s ruling prevents the U.S. Department of Labor, the Acting Secretary of...

In recent developments, a couple of court cases need to be noted by employers who do diversity activities.  The first is the Fearless Fund case.  Fearless Fund is an investment fund that sought to administer a contest that would have awarded $20,000 grants to small businesses owned by Black women.  The American Alliance for Equal Rights (the Alliance), an organization led by Edward Blum, who led the charge against the Harvard and University of North Carolina’s...

Ageism is real in the workplace. Resume Now released findings to its 2024 State of Ageism in the Workplace report, which examines the prevalence and impact of age-related discrimination. The survey polled 1,003 U.S.-based workers who are aged 40 or older and found that 90% of respondents have experienced ageism in their workplace.

In today’s dynamic work environment, where teamwork and honesty are paramount, the role of managers has never been more critical. Managers who cultivate authentic dialogue and demonstrate vulnerability are laying the foundation for a healthy and productive workplace culture, which is essential for advancing Diversity, Equity, and Inclusion (DEI).

In recent developments, a couple of court cases need to be noted by employers who do diversity activities.  The first is the Fearless Fund case.  Fearless Fund is an investment fund that sought to administer a contest that would have awarded $20,000 grants to small businesses owned by Black women.  The American Alliance for Equal Rights (the Alliance), an organization led by Edward Blum, who led the charge against the Harvard and University of North Carolina’s race...

recently put out a statement that they will be removing the “E” in DEI. Saying they are moving to just I&D, focusing on the importance of inclusion and then diversity more than equity. They are removing equity to focus on inclusion and diversity as a way to address the current shortcomings of DEI programs that they believe have received societal backlash and have caused increasing polarization.

In Groff v. DeJoy, 600 U.S. 447 (2023), the U.S. Supreme Court raised the bar on denying religious accommodations from showing an "undue hardship" in making the accommodation to incur "substantial increased costs" compared to the normal costs of business.  Previously, an employer could show that de minimis increase of costs would be an undue hardship. 

Diversity, equity, and inclusion (DEI) has been a hot topic the past few years.  The diversity and inclusion part, not as much, but the equity aspect quite a bit.  The Harvard case was called an affirmative action case, but it had nothing to do with affirmative action.  It was a case about equity and access to Harvard.  The approach taken was a quota system, which is illegal under all laws.  Diversity is not about quotas, it’s about working together to provide...

To test whether employers discriminate against job applicants based on perceived race based on names, economists with the University of California Berkeley and University of Chicago sent out about 80,000 fabricated resumes to 97 large employers using equivalent qualifications but different personal characteristics during the period of 2019-2021. They changed applicants’ names to suggest that they were white or Black, and male or female — Latisha or Amy, Lamar or Adam.

With gender identification becoming more fluid, there is an inherent conflict of how to identify a fluid gender employee while respecting religious beliefs.  As a result, there are more court cases filed to protect one right with a defense of the other right leaving employers in the middle and on edge at times.  This tension can cause disruptions to the culture and to productivity if not addressed properly, whatever that may mean.

Approximately one year following the widespread introduction of ChatGPT, the realm of generative AI (GenAI) has generated a mix of enthusiasm and apprehension among employees and their respective organizations.

The Sixth Circuit Court of Appeals recently ruled on a sex discrimination case where the Plaintiff argued she was denied a promotion twice and then the employer moved to demote her because she was heterosexual. The case involved the “unusual employer who discriminates against the majority.” This type of discrimination is sometimes erroneously referred to as reverse discrimination.

Under general EEO law, federal anti-discrimination law liability arises depending on the federal circuit court of appeals in three situations:  the Sixth Circuit prohibits any “materially adverse change in the terms of employment;” the Ninth Circuit prohibits any adverse treatment “reasonably likely to deter” the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits prohibit an “ultimate employment decision.” ...

Charlene Carter was a flight attendant at Southwest.  She allegedly claimed that she was fired because she objected to her union's participation in a protest for which Planned Parenthood was a sponsor.  Prior to that, Carter sent repeated messages on social media to the president of Carter's flight attendant union, expressing outrage over the union president’s alleged pro-abortion beliefs. The union president attended the 2017 Women’s March in Washington, D.C....

A recent case from the U.S. 5th Circuit Court of Appeals, Braidwood Management, Inc. v. Equal Employment Opportunity Commission, No. 22-10145 (5th Circuit Court of Appeals, 6/20/23), has opened the door for a possible super statute that can override the 1964 Civil Rights Act. In other words, a company who may be a for-profit but with a religious bent, think Hobby Lobby, could discriminate in hiring, for example, against someone of the LGBTQ community, a mother out of wedlock, and more. ...

The Supreme Court ruled on June 30th in Creative LLC v. Elenis, No. 21–476 (6/30/23) that the First Amendment prohibits the state of Colorado, through its antidiscrimination statute, from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.  Although it is framed as a public accommodation case, this case, along with the Groff v. DeJoy, Postmaster General (600 U.S.___2023) religious accommodation case, may make it interesting...

SHRM recently published a study that presents new findings on age discrimination at work and its impact on the American workforce. According to the research, approximately 30% of workers in the United States have experienced unfair treatment based on their age at some point in their careers. Out of these individuals, 72% have admitted that such mistreatment has made them contemplate quitting their jobs.