Discrimination

Expert Analysis

• The Leeway And Limits Of DOL's Joint Employer Proposal

  

  A recent U.S. Department of Labor proposal would make joint employment harder to prove, giving employers more flexibility to add nonemployee labor without triggering shared liability, but businesses should be mindful that it likely won't affect state law tests or the standards that courts use, says Todd Lebowitz at BakerHostetler.

• Class Actions At The Circuit Courts: May Lessons

  

  In this month's review of class action appeals, Mitchell Engel at Shook Hardy discusses four recent rulings from cases involving allegations of Title VII violations, the Employment Retirement Income Security Act, prison dental care violations and overcharging for PACER access.

• Flashpoints In Focus: Tips As EEOC Prioritizes Hiring Bias

  

  Two recent cases brought by the U.S. Equal Employment Opportunity Commission reflect its increased interest in recruiting and hiring bias claims, but employers can safeguard their business by finding quota alternatives, properly managing hiring statistics, and reviewing their vendor management and artificial intelligence governance, say attorneys at Seyfarth.

• Employer Tips After 4th Circ. Rejects Trimmed Suit Deadlines

  

  The Fourth Circuit's recent holding in Thomas v. EOTech that employers cannot use contractual provisions to shorten statutory filing periods for Title VII or Age Discrimination in Employment Act claims offers a warning for employers to review any such documents and reassess their litigation risk, say attorneys at Ogletree.

• Tips For Handling DEI Clampdown In Gov't Contracts

  

  A recent executive order and subsequent guidance from the Federal Acquisition Regulatory Council reflect unified opposition to diversity, equity and inclusion in federal contracts, requiring contractors to, among other things, identify which entities are subject to flow-down obligations and prepare for near-term contract action and negotiations, say attorneys at Morgan Lewis.

• 1st Circ. Ruling Offers Post-Muldrow Tips For Handling PIPs

  

  The First Circuit's recent ruling in Walsh v. HNTB, one of the first circuit-level applications of Muldrow's lowered adverse employment action threshold, indicates that performance improvement plans can remain on solid footing if they don't affect the terms of employment, says Sasha Thaler at Constangy.

• Rulings Offer Lessons On Credible Workplace Investigations

  

  Three recent rulings illustrate that while internal investigations are a critical tool for managing workplace risk, the process itself must be able to withstand scrutiny, so employers should take steps to ensure that they're conducted with independence, credibility and trust to better defend their case, say attorneys at Krevolin Horst.

• Flashpoints In Focus: Navigating EEOC's Religious Bias Push

  

  The U.S. Equal Employment Opportunity Commission has placed a heightened focus on religious accommodation requests, as illustrated by a recent suit and agency report, but with modest investments in time and planning, employers can reduce the chance of litigation and provide strong defenses against it, say attorneys at Seyfarth Shaw.

• What Mass. Ruling Clarifies About Whistleblower Protections

  

  A Massachusetts appellate court's recent decision in Galvin v. Roxbury Community College, finding that an employee retained whistleblower protections despite his reporting responsibilities and possible contribution to the compliance failure, requires employers to distinguish between performance-based decisions and their response to protected reporting, say attorneys at Smith Kane.

• What We Did And Didn't Learn From DOJ's 1st Illegal DEI Deal

  

  IBM's recent $17 million deal with the U.S. Department of Justice marks the first resolved False Claims Act enforcement action under the Civil Rights Fraud Initiative, and while it validates the core of the government's FCA antidiscrimination enforcement road map, it leaves its most aggressive theories untested, say attorneys at Nutter.

• New DEI Clauses Will Reshape FCA Exposure For Contractors

  

  As federal agencies mandate new procurement language aimed at curbing contractors' DEI practices and embedding False Claims Act materiality concepts into antidiscrimination obligations, contractors should account for both compliance and litigation risks before signing, and understand the legal constraints that govern FCA materiality, say attorneys at Seyfarth.

• How Guidance Narrows Federal Telework Accommodations

  

  A recent FAQ from the U.S. Equal Employment Opportunity Commission and the U.S. Office of Personnel Management offers agencies several ways to narrow telework as an accommodation for federal employees, including through in-office alternatives, revisiting prior approvals and substituting leave for situational telework, says Lori Kisch at Kalijarvi Chuzi.

• 7 Tips For Employers On Calif. Decision-Making Tech Rules

  

  Over the next eight months, many California employers must prepare to comply with challenging new requirements under the California Consumer Privacy Act that constitute the most comprehensive set of rules in the country on the use of automated decision-making technology, say attorneys at Littler.