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?

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.

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...

A recent federal case from California highlighted the importance of social media harassment under Title VII of the 1964 Civil Rights Act. In Okonowsky v. Merrick Garland, No. 23-55404 (U.S. 9th Circuit Court of Appeals, 7/25/24), Okonowsky was a staff psychologist working at a federal prison where a coworker was posting derogatory content about her on social media.

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. 

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.

Earlier this week, the U.S. Equal Employment Opportunity Commission (EEOC) published final guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace.” The guidance will help people feel safe on the job and assist employers in creating respectful workplaces.

In a unanimous 9-0 decision, a case decided last week changed the scope of how to view discriminatory actions of job or lateral transfers which seemingly have little to no impact on the employment opportunities of an employee.  Muldrow v. City of St. Louis No. 22-193 (2024) out of the 8th Circuit, asked the question: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant...

On Monday the Equal Employment Opportunity Commission (EEOC) reported that the final version of the Pregnant Worker Fairness Act (PWFA) regulations will be published in the Federal Register August 19th.  The PWFA was passed December 29, 2022, and took effect in June of 2023. Last August proposed rules were released, and the public’s comments were requested. Over 100,000 comments were received.

On March 12, 2024, the EEOC issued a press release and report stating, “Men are more likely to be in higher pay bands than women.”  This was the only meaningful statement in the report.  Specifically, the EEOC released a data dashboard featuring the first-time collection of 2017 and 2018 pay data reported by about 70,000 private employers and certain federal contractors with 100 or more employees each year, representing over 100 million workers. The dashboard contains a...

As Gen Z continues to assert its presence in the workforce, marked by its diverse composition and unapologetic advocacy, employers are urged to recalibrate their approaches and expectations to foster a more inclusive and productive work environment for all generations.

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.

In November 2023, a lawsuit was filed against Amazon based on equal pay in which women are paid less than men performing the same or comparable work.  The lawsuit also alleges discrimination in promotions and retaliation against anyone who complains. 

A case was argued last month before the Supreme Court, Muldrow v. City of St. Louis No. 22-193 out of the 8^th Circuit, which asked the question: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?”  It should have been an easy case.

Earlier this year, the U.S Supreme Court, in Groff v. DeJoy, Postmaster General (600 U.S ______ 2023), redefined the requirements of “undue hardship” in a religious discrimination context and held that it means more than just a “de minimis” burden on the employer. Using the term de-minimis cost is “substantial in the overall context of an employer’s business.”

The U.S 7^th Circuit Court of Appeals recently ruled that a case can go to trial on whether an employer was required to provide an accommodation to an employee that had difficulty driving at night and whose shift ended at 9:00 p.m.  According to the court, the main question before it is whether the employee was entitled to a modified work schedule as an accommodation to make his commute safer.

On Monday October 2, 2023, the EEOC released its new proposed Harassment Guidance for comment to the public.  Comments must be in by November 1, 2023. 

Since 1966 private employers with 100 or more employees and federal contractors with 50 or more employees and that meet certain criteria are required to report annually the number of individuals they employ by job category, sex, and race or ethnicity.  The EEO-1 report, although filed in 2023, is for the 2022 year.  So, the report is called 2022 EEO-1 Component 1.

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....

iTutorGroup Inc. will pay $365,000 to a group of approximately 200 rejected job seekers age 40 and over, according to a consent decree filed in the U.S. District Court for the Eastern District of New York. The 2022 lawsuit against iTutorGroup Inc was the first by the U.S. Equal Employment Opportunity Commission (EEOC) involving a company's use of AI to make employment decisions.

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...