Discrimination

Expert Analysis

• Formula In New York City AI Bias Law Is Not Ready For Use

  

  New York City will soon begin enforcing its law regulating the use of artificial intelligence in employment decisions, but the statute's bias audit rules introduced a problematic scoring rate formula that should be rectified before it's mandated for use in the real world, says Jey Kumarasamy at BNH.AI.

• Employer Tips For Complying With NYC Weight Bias Ban

  

  To comply with New York City’s new law that prohibits weight or height discrimination in employment and housing decisions, employers will not only need to update workplace handbooks, anti-bias policies and training materials, but also job postings, applications and descriptions, say Jonathan Wexler and Taylor McCann at Vedder Price.

• Water Cooler Talk: Office Drug Abuse Insights From 'Industry'

  

  Tracey Diamond and Evan Gibbs at Troutman Pepper chat with Squarespace general counsel Larissa Boz about how employees in the Max TV show "Industry" abuse drugs and alcohol to cope with their high-pressure jobs, and discuss managerial and drug testing best practices for addressing suspected substance use at work.

• How New Pregnancy, Nursing Laws Surpass Prior Protections

  

  Employers must understand how the new Pregnant Workers Fairness and PUMP Acts build on existing federal workplace laws — and they will need to make key updates to ensure compliance, say Alexandra Garrison Barnett and Leigh Shapiro at Alston & Bird, and Kandis Wood Jackson at McKinsey & Co.

• 4th Circ. Ruling Outlines Defense Against Retaliation Claims

  

  The Fourth Circuit's surprising decision in Johnson v. Global Language Center eschewed the low standard typically applied to demonstrating protected activities under Title VII and could affect internal complaint processes and the retaliation defenses available to employers, say Tory Summey and Zack Anstett at Parker Poe.

• An Overview Of OFCCP's Religious-Exemption Reset

  

  The recent rescission of a Trump-era rule that gave government contractors broader latitude under federal anti-discrimination rules doesn't prohibit employment decisions based on religious faith, but clarifies the factors a company must consider when seeking a religious exemption, say Zev Grumet-Morris and Christopher Durham at Duane Morris.

• FMLA Confusion Persists Despite New DOL Advisory

  

  A recent U.S. Department of Labor advisory opinion provides some clarity regarding the Family and Medical Leave Act's handling of holiday weeks, but the FMLA remains a legal minefield that demands fact-specific analysis of each employee's unique situation, says Nicholas Schneider at Eckert Seamans.

• 2 Steps To Improve Arbitrator Diversity In Employment Cases

  

  There are prevalent obstacles in improving diversity among arbitrator ranks, but in the realm of employment-related disputes, there are two action items practitioners should consider to close the race and gender gap, say Todd Lyon and Carola Murguia at Fisher Phillips.

• Attendance Policies, ADA May Be In EEOC's Crosshairs

  

  While a recent matter before the Eleventh Circuit primarily involved the U.S. Equal Employment Opportunity Commission’s subpoena power, the case's factual details suggest that the agency wants to determine whether certain attendance policies violate the Americans with Disabilities Act, potentially on a nationwide scale, say Anne Yuengert and William Manuel at Bradley Arant.

• High Court Ruling Wouldn't Change Federal Affirmative Action

  

  If the U.S. Supreme Court's eventual decision in two cases concerning affirmative action indicates that using race or ethnicity as a factor in college admissions is illegal, it would align with how the Office of Federal Contract Compliance Programs already enforces nondiscrimination regulations for government contractor hiring, say Joanna Colosimo and Evan Szarenski at DCI Consulting.

• Title IX Damages Outlook 1 Year After High Court Ruling

  

  Federal courts have been extending the holding of last year's U.S. Supreme Court decision, Cummings v. Premier Rehab Keller, to disallow emotional distress damages under Title IX, but students and educators suing educational institutions for gender discrimination can still recover monetary damages under alternate theories, say attorneys at Sanford Heisler.

• State Laws Could Complicate Employer Pandemic Protocols

  

  If the recent wave of state bills that would prevent employers from implementing certain safety protocols in a future pandemic is signed into law, companies — especially those that operate across state lines — will be forced to completely rewrite their pandemic playbooks to avoid compliance issues and discrimination claims, says Karla Grossenbacher at Seyfarth Shaw.

• Remote Work Considerations In A Post-Pandemic World

  

  Now that the public health emergency has ended, employers may reevaluate their obligations to allow remote work, as well as the extent to which they must compensate remote working expenses, though it's important to examine any requests under the Americans With Disabilities Act, say Dan Kaplan and Jacqueline Hayduk at Foley & Lardner.