DEI commitments by employers appear unchanging: Littler, a law firm focusing on labor, recently published a study showing that only about 8% of leading American companies have or intend to alter their diversity, equity, and inclusion (DEI) policies. The Littler study involved about 350 C-suite executives. Despite a few high-profile defections of major companies from DEI, most companies have been slow to consider any meaningful reform.  The study shows that even in light of recent White House executive orders, almost half of respondents indicated that they are not considering changes to their DEI policies. 60% of respondents stated that they are awaiting details of enforcement mechanisms from the Trump administration before altering any DEI policies. Nonetheless, over half of the respondents indicate that they are concerned about the risk of DEI-related lawsuits, government enforcement tactics, and shareholder proposals due to the current administration’s stance on DEI. These worries are more prevalent among federal contractors than other private companies. Over 50% of the executives surveyed expect that they would moderate their DEI commitments over the next year due to the Trump administration’s stance on DEI.  Source: Hall Benefits Law 4/29/25

Texas federal judge rules against gender identity in EEOC’s harassment guidance:  A Texas district court judge on Thursday vacated portions of the U.S. Equal Employment Opportunity Commission’s 2024 harassment guidance (State of Texas, et. al. v. EEOC).  EEOC exceeded its authority by issuing guidance “requiring bathroom, dress, and pronoun accommodations inconsistent with the text, history and tradition of Title VII and recent Supreme Court precedent,” Judge Matthew Kacsmaryk found.  The decision applies nationwide, Tiffany Stacy, San Antonio shareholder at Ogletree Deakins stated.  The elements the judge found illegal and vacated included any language defining “sex” in Title VII to include “sexual orientation” or “gender identity”; the entire “sexual orientation and gender identity” section under the bases covered by Title VII; example 46 in the section describing the context of an objectively hostile work environment, which focuses on misgendering; and all language defining “sexual orientation” and “gender identity” as a protected class.   The judge also ruled that EEOC expanded the scope of “sex” under Title VII beyond the binary categorization of biological male and female, relying on the U.S. Supreme Court’s 2020 Bostock v. Clayton County, Ga. decision. “But the Supreme Court expressly declined all invitations to newly define Title VII ‘sex,’” he wrote, with SCOTUS declaring homosexuality and transgender status to be “distinct concepts” from sex. Source: HR Dive 5/16/25

Be careful – wage fixing criminal charges conviction:  In a historic jury verdict on April 14, 2025, the U.S. Department of Justice's Antitrust Division secured its first-ever jury conviction for criminal wage-fixing in violation of Section 1 of the Sherman Act. For several years, the DOJ Antitrust Division had suffered a string of setbacks—with judges and juries alike—in its effort to criminally prosecute wage-fixing and "no poach" agreements between competitors in the labor market. But a federal jury in Las Vegas, Nevada, reversed that trend by convicting Eduardo Lopez for his involvement in a three-year conspiracy to fix the wages of home healthcare nurses in the Las Vegas area, among other crimes.  The jury's verdict, which followed a 15-day trial, could have significant implications for business leaders and in-house counsel, particularly in the health care sector where the DOJ has focused much of its criminal wage-fixing enforcement efforts. In short, companies that participate in competitive local labor markets should be extremely careful if and when they discuss employee wages and hiring practices with competitors. Source: Winston & Strawn 4/24/25

Retirement benefits are a changing: Data from Vanguard reveals how retirement plans are changing, with a focus on automatic enrollment adoption, automatic enrollment default rates, trends in elected deferral changes and pure target-date investors and exchanges. Vanguard's data found that larger retirement plans with at least 1,000 participants are more likely to implement automatic enrollment, and 61% of plans with automatic enrollment defaulted their employees into the plan at a rate of 4% or higher, with this number increasing year-over-year.  In 2024, 16% of participants increased their payroll deferral percentage, while 8% decreased it. Additionally, 29% of retirement plan participants increased their deferral percentage from an annual automatic escalation, leading to 45% of participants increasing their savings, which is the highest percentage that Vanguard has tracked in their 25 years of this report.  Source: EBN 5/6/25

Cleveland adopts salary history bans and pay transparency for employers in the city: On April 28, 2025, the Cleveland, Ohio City Council adopted Ordinance 104-2025, which requires employers with at least 15 employees in Cleveland to include salary ranges in job postings and prohibits inquiring about an applicant’s salary history. The ordinance, which will take effect on October 28, 2025, if Mayor Bibb approves it by May 8, builds on a nationwide trend of state and municipal laws aimed at pay transparency and salary history inquiries. Salary, defined broadly in the ordinance, includes wages, commissions, hourly earnings, other monetary earnings, and benefits. But it excludes objective measures of an applicant’s productivity, such as revenue, sales, and other production measures. The ordinance permits discussing salary expectations with applicants. The ordinance does not apply to: (1) reliance on salary history as authorized by any federal, state, or local law; (2) applicants for internal transfer or promotion; (3) an applicant’s voluntary and unprompted disclosure of salary history; (4) an employer’s attempt to verify an applicant’s disclosure of non-salary related information; (5) applicants who are rehired if the employer already has the applicant’s past salary history; (6) salaries for positions set by collective bargaining; and (7) governmental employers, other than the City.  Source: Littler 5/5/25