Discrimination

Expert Analysis

• Employers Need Clarity On FLSA Joint Employer Liability

  

  A judicial patchwork of multifactor tests to determine joint employment liability has led to unpredictable results, and only congressional action or enactment of a uniform standard to which courts will consistently defer can give employers the clarity needed to structure their relationships with workers, say attorneys at Seyfarth.

• Prepare For Federal Agency Scrutiny On AI Discrimination

  

  A recent joint statement highlights several federal regulatory agencies' intent to scrutinize organizations' use of artificial intelligence technology under their existing mandates, so companies that build or use such systems should carefully ensure legal compliance to avoid potential bias and discrimination issues, say Tara Emory, Mike Kearney and Nick Snavely at Redgrave.

• Employee Termination Lessons After 4th Circ. Bias Case

  

  A Fourth Circuit panel's recent dismissal of discrimination and retaliation claims in Lashley v. Spartanburg Methodist College provides insights for employers on how to handle terminations, particularly when performance concerns and medical history are involved, says Heidi Siegmund at McGuireWoods.

• Tips On Workplace DEI Efforts In A Changing Legal Landscape

  

  Amid years of political debates about diversity, equity, inclusion and accessibility efforts in the workplace, and increased state legislation in this area, employers can still explore ways to engage in DEIA training and initiatives without creating unnecessary legal risks, say attorneys at Husch Blackwell.

• Changes To Note In Revised NY Sex Harassment Model Policy

  

  The New York State Department of Labor's recent revision of its sexual harassment model policy shows continued focus on diminishing workplace sexual harassment, and employers should consider whether their current policies need updated language about harassment, discrimination, retaliation and more, say Anna McCarthy and Edward Steve at Harter Secrest.

• Eye On Compliance: Joint Employment

  

  Madonna Herman at Wilson Elser breaks down the key job conditions that led to a recent National Labor Relations Board finding of joint employment, and explains the similar standard established under California case law — providing a guide for companies that want to minimize liability when relying on temporary and contract workers.

• 9th Circ. Contractor Vax Ruling Widens Presidential Authority

  

  In reversing an injunction against President Joe Biden's federal contractor vaccine mandate, the Ninth Circuit creates a circuit split on presidential authority, and breathes new life into the administration's attempts to implement government contract policies that are unlikely to pass in Congress, says Richard Arnholt at Bass Berry.

• Consistency Is Key To Employer Accommodation Defenses

  

  Amid the U.S. Equal Employment Opportunity Commission's two new Americans with Disabilities Act lawsuits against Walmart, and the big-box store's win in a similar case last year, employers should note that consistent application of leave and absence policies can foster stronger defenses in reasonable accommodation disputes, says Rachel Schaller at Taft Stettinius.

• Expect The Patchwork Of AI Regulation To Grow

  

  Given the unlikelihood of meaningful federal artificial intelligence legislation in the immediate future, the patchwork of state AI regulation will likely continue to grow, bringing at least two main risks for companies in the AI space, say attorneys at Jenner & Block.

• Tips For Defending Employee Plaintiff Depositions

  Excerpt from Practical Guidance

  

  A plaintiff cannot win their employment case through a good deposition, but they can certainly lose it with a bad one, so an attorney should take steps to make sure the plaintiff does as little damage as possible to their claim, says Preston Satchell at LexisNexis.

• Water Cooler Talk: Whistleblowing Insights From 'Dahmer'

  

  Tracey Diamond and Evan Gibbs at Troutman Pepper chat with DS Smith's Josh Burnette about how the show "Dahmer – Monster: The Jeffrey Dahmer Story" provides an extreme example of the perils of ignoring repeat complaints — a lesson employers could apply in the whistleblower context.

• Job Reassignment Case Shows Need For Clear ADA Policies

  

  The Fifth Circuit's recent holding in U.S. Equal Employment Opportunity Commission v. Methodist Hospitals that a disabled employee was not entitled to a job reassignment as a reasonable accommodation underscores the importance of implementing detailed Americans with Disabilities Act policies and educating employees on them, says Marcellus Chamberlain at Phelps Dunbar.

• 10 Ways NYC AI Discrimination Rules May Affect Employers

  

  Continuing the most comprehensive effort to regulate employers' use of artificial intelligence technology in the United States, New York City's recent rules to implement Local Law 144 make a number of noteworthy changes that may restrict companies from using automated employment decision tools, say attorneys at Gibson Dunn.