Discrimination

Expert Analysis

• Lessons Learned From 2023's Top FMLA Decisions

  

  This year’s most significant Family and Medical Leave Act decisions offer lessons on the act's technical requirements, including the definition of serious health condition, compliance with notice requirements and whether it is permissible to give an employee substantial extra work upon their return from leave, says Linda Dwoskin at Dechert.

• Artificial Intelligence Is In Need Of Regulation — But How?

  

  Since most of the artificial intelligence-related laws in 2023 were part of more extensive consumer privacy law, the U.S. still has a lot of work to do to build consensus on how to oversee AI, and even who should do the regulating, before moving forward on specific and reasonable guidelines as AI's capabilities grow, say Nick Toufexis and Paul Saputo at Saputo Toufexis.

• Lessons Learned From 2023's Top ADA Decisions

  

  This year saw the courts delving into the complexities of employee accommodations under the Americans with Disabilities Act in the post-pandemic workplace, going beyond bright-line rules with fact-intensive inquiries that are likely to create uncertainty for employers, says Linda Dwoskin at Dechert.

• What's Ahead For Immigrant Employee Rights Enforcement

  

  The U.S. Department of Justice’s increased enforcement related to immigration-based employment discrimination is coupled with pending constitutional challenges to administrative tribunals, suggesting employers should leverage those headwinds when facing investigations or class action-style litigation, say attorneys at Jones Day.

• Top 10 Whistleblowing And Retaliation Events Of 2023

  

  The U.S. Securities and Exchange Commission and federal and state courts made 2023 another groundbreaking year for whistleblower litigation and retaliation developments, including the SEC’s massive whistleblower awards, which are likely to continue into 2024 and further incentivize individuals to submit tips, say attorneys at Proskauer.

• 10 Steps To Reduce Risks From AI Employment Tools

  

  In light of the White House’s recent executive order on responsible use of artificial intelligence, companies using AI tools to make employment decisions should take steps to understand and mitigate the legal risks posed by these products and keep up with the rapidly evolving regulations that govern them, say attorneys at Cooley.

• What Employers Can Learn From EEOC's 2023 ADA Priorities

  

  Between a spike in Americans with Disabilities Act suits filed by the Equal Employment Opportunity Commission in 2023 and the agency’s newly released priorities, the EEOC has provided employers a preview of several ADA issues — like web accessibility, pregnancy discrimination and inflexible policies — it will likely focus enforcement on next year, says Stacy Bunck at Ogletree.

• Eye On Compliance: EEOC Focus On Workplace AI

  

  With the U.S. Equal Employment Opportunity Commission’s recent guidance and enforcement focus on the use of artificial intelligence tools during the hiring process and other job-related assessments, companies should be mindful that anti-discrimination laws apply equally to both human- and AI-generated decisions, say Laura Stutz and Lisa Ackerman at Wilson Elser.

• 5th Circ. Ruling Sets Bostock, Faith Exemption Up For Review

  

  The Fifth Circuit's Braidwood v. Equal Employment Opportunity Commission decision could tee up U.S. Supreme Court review of whether employing an individual to whose protected class the employer objects infringes on the employer's religious beliefs, potentially narrowing LGBTQ worker protections from the high court's 2020 Bostock v. Clayton County decision, says Adam Grogan at Bell Law.

• Legal Profession Gender Parity Requires Equal Parental Leave

  

  To truly foster equity in the legal profession and to promote attorney retention, workplaces need to better support all parents, regardless of gender — starting by offering equal and robust parental leave to both birthing and non-birthing parents, says Ali Spindler at Irwin Fritchie.

• Why Employers Should Refrain From 'Quiet Firing'

  

  While quiet firing — when an employer deliberately makes working conditions intolerable with the goal of forcing an employee to quit — has recently been identified in the news as a new trend, such constructive discharge tactics have been around for ages, and employers would do well to remember that, comparatively, direct firings may provide more legal protection, says Robin Shea at Constangy.

• 5 New Calif. Laws Employers Need To Know

  

  Now is a good time for employers to evaluate personnel rules to keep pace with California’s newly adopted employee protections, which go into effect early next year and include laws regarding reproductive loss leave, cannabis use, workplace violence prevention and noncompete agreements, say attorneys at Farella Braun.

• 3 Employer Strategies To Streamline Mass Arbitrations

  

  Workers under arbitration agreements have gained an edge on their employers by filing floods of tedious and expensive individualized claims, but companies can adapt to this new world of mass arbitration by applying several new strategies that may streamline the dispute-resolution process, says Michael Strauss at Alternative Resolution Centers.