American Society of Employers
When Diversity Goes Awry

21 May 2024

When Diversity Goes Awry

Author: Anthony Kaylin

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...
80,000 Fake Resumes Sent to 97 Large Organizations – What Happened?

7 May 2024

80,000 Fake Resumes Sent to 97 Large Organizations – What Happened?

Author: Anthony Kaylin

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.
Misgendering in the Workplace

23 January 2024

Misgendering in the Workplace

Author: Anthony Kaylin

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.

Can AI Reduce Bias in HR Processes?

2 January 2024

Can AI Reduce Bias in HR Processes?

Author: Heather Nezich

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.

Sixth Circuit Court of Appeals Holds for Employer in “Reverse” Sex Discrimination Case

19 December 2023

Sixth Circuit Court of Appeals Holds for Employer in “Reverse” Sex Discrimination Case

Author: Michael Burns

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.

Is a New Standard for Discrimination Coming?

5 September 2023

Is a New Standard for Discrimination Coming?

Author: Anthony Kaylin

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.” ...
Where Religion and Civility Become Loggerheads

22 August 2023

Where Religion and Civility Become Loggerheads

Author: Anthony Kaylin

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....
Could the Religious Freedom Restoration Act of 1993 (RFRA) Allow Legalized Sex Discrimination?

1 August 2023

Could the Religious Freedom Restoration Act of 1993 (RFRA) Allow Legalized Sex Discrimination?

Author: Anthony Kaylin

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. ...
Can an Employee Refuse to Work with Another Employee Because It Violates Their Religious Belief?

11 July 2023

Can an Employee Refuse to Work with Another Employee Because It Violates Their Religious Belief?

Author: Anthony Kaylin

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...
The Impact of Ageism in the Workplace

30 May 2023

The Impact of Ageism in the Workplace

Author: Heather Nezich

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.

Will the Harvard Affirmative Action Case Impact Company DEI Programs?

23 May 2023

Will the Harvard Affirmative Action Case Impact Company DEI Programs?

Author: Anthony Kaylin

Whether or not the Harvard affirmative action case impacts corporate DEI programs is unlikely to be known until the decision comes down in June.  The issue with the Harvard case before the Supreme Court is about proportional representation in student admissions under the guise of diversity for the student body.  The Court is likely to rule against Harvard and the University of North Carolina. They are also likely to overturn the University of Michigan law school case that was...
Detroit Tigers Face Race and Age Discrimination Claim for Termination of Clubhouse Manager

16 May 2023

Detroit Tigers Face Race and Age Discrimination Claim for Termination of Clubhouse Manager

Author: Michael Burns

The Detroit Tigers longtime Visiting Team Clubhouse Manager was let go in 2022 based on poor ratings received by visiting ball clubs going back to a 2017-2018 survey. The 58-year-old manager had been employed in that position for over 30 years, and his ratings during that tenure had been generally positive. The released manager is also African American and was replaced by a younger white employee.  John Nelson, the terminated employee, sued the Detroit Tigers for age and race...
Michigan Takes Important Step to Improve Inclusivity at Work

21 March 2023

Michigan Takes Important Step to Improve Inclusivity at Work

Author: Heather Nezich

Last week, Governor Gretchen Whitmer signed legislation expanding the Elliott-Larsen Civil Rights Act (ELCRA). The bill reaffirms legal protections for sexual orientation and expands coverage to include gender identity and expression. 

NLRB Defends Speech Supporting Racial Discussions

7 March 2023

NLRB Defends Speech Supporting Racial Discussions

Author: Anthony Kaylin

The National Labor Relations Board Office of General Counsel issued an Advice Memorandum with the position that group discussions in the workplace concerning racial bias are protected concerted activity under Section 7 of the National Labor Relations Act (NLRA), and employees who engage in such activity are protected from employer retaliation.  This memo applies to both union and nonunion employees.
Making Space for DEI

3 January 2023

Making Space for DEI

Author: Linda Olejniczak

DEI initiatives have stalled for a second year according to the McLean & Company HR Trends 2023 survey results.  In our work helping companies develop roadmaps for DEI, a handful of key areas lacking:

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