If you are a federal contractor and engage in any diversity or DEI activities, the answer is yes.  In Executive Order 14173, President Trump wrote that contractors may be subject to FCA claims based on their DEI activities.  Although there are conflicting rulings on the DEI certification by courts in the 4th and 7th Circuits concerning both the 14173 and 14151 certifications, once the DEI certification comes into effect, it could be a field day for plaintiff attorneys, and it...

From the service dog to the emotional support peacock and ferret, employers are receiving more requests from employees who want to bring these animals to work.  Title I of the ADA prohibits disability discrimination in the employment context and requires employers to provide reasonable accommodations to applicants and employees.  But Title I is silent in reference to service and emotional support animals. 

In recent years, religion has played a growing role in civil rights enforcement. Cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission (584 U.S. 617, 2018) examined whether a business owner could refuse to create a custom wedding cake for a same-sex couple based on religious beliefs, even though they were willing to sell other pre-made items. More recently, Groff v. DeJoy (No. 22-174, June 29, 2023) raised the standard for how far employers must go to accommodate religious...

Last week, the administration unveiled the details of its proposal to slash around $163 billion in federal spending for the 2026 fiscal year which starts October 1st.  Unsurprisingly, many of the cuts hit agency staffing and activities.  The1,220-page document and agency blueprints show the extent of the administration’s push of a vast transformation in Washington. Although the administration, like previous administrations, would like their budget to go unscathed by...

Mercer Marsh Benefits' Health Trends Report surveyed 225 insurers in 55 markets and found that they are expecting half of employers will "want to reduce plan coverage to manage costs in the coming year."

The EEO-1 portal opened yesterday, May 20, 2025, and covered employers will have until June 24, 2025, to submit their reports. The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria to submit workforce demographic data, including data by job category, sex, and race or ethnicity to the EEOC.   

Disparate impact is a difficult method to prove discrimination.  Generally, it is a practice or policy that is neutral on its face yet has significant impact on an affected party. The disparate impact analysis was first discussed in Griggs v. Duke Power, 401 U.S. 424 (1971), which held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”. In 1991, Congress amended Title VII to add Section 703(k),...

In a complaint filed with the EEOC, the ACLU alleged that Intuit’s use of HireVue software—part of an AI-driven hiring process—unfairly rejected a qualified applicant due to the system's failure to accommodate the applicant's disability. The applicant, a Native American who is deaf and speaks with a deaf accent, was reportedly denied the opportunity because the AI could not appropriately process their disability-related communication.

With the economy in flux, and layoffs at a high not seen since the pandemic, how can employers protect themselves from lawsuits by disgruntled ex-employees?  In a recent case, Raymond v. Spirit AeroSystems Holdings, No. 23-3126 (U.S. 10th Circuit Court of Appeals, 1/7/25), the court reviewed a claim that a group of former employees were selected for termination in a reduction in force (RIF) based on their age, in violation of the federal Age Discrimination in Employment Act (ADEA)....

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...

President Trump nominated Jonathan Berry to be the next Solicitor of the U.S. Department of Labor (USDOL).  Jonathan Berry is a managing partner at Boyden Gray PLLC and a member of the Federalist Society, a conservative legal group.  He is also the author of Chapter 18 of Project 2025’s treatise Mandate for Leadership, which focuses on labor department priorities and activities.

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...

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...