Discrimination

Expert Analysis

• Where A Textual Reading Of Title VII Could Lead Justices

  

  If the U.S. Supreme Court decides to review Title VII’s objective harm standard in two cases with pending petitions, a strict adherence to the statute’s text will lead the court to stick with a model that allows analysis to focus on the empirical, rather than defining fuzzy semantic boundaries, say Stephen Fink and Bryan Neal at Holland & Knight.

• How Employers Can Defend Against Claims Made In Bad Faith

  Excerpt from Practical Guidance

  

  When an employer becomes aware of an employee complaint, it should carefully research whether the claim could be characterized as frivolous or in bad faith, and then consider various defense strategies, say Ellen Holloman and Jaclyn Hall at Cadwalader.

• Anticipating What ChatGPT Means For The Workplace

  

  As the enormously popular artificial intelligence chatbot ChatGPT finds applications in the workplace, companies should begin considering how the new tool may expose them to hiring bias, intellectual property risks and misinformation in work products, say Christopher Deubert and Amanda Novak at Constangy.

• 10 Evolving AI Compliance Considerations For Employers

  

  As state and local laws affecting use of artificial intelligence tools in the employment lifecycle take effect this year, employers must keep several things in mind, including the U.S. Equal Employment Opportunity Commission's growing enforcement efforts in AI, say Cassandra Gaedt-Sheckter and Emily Lamm at Gibson Dunn.

• Don't Assume AI Is Smart Enough To Avoid Unintended Bias

  

  As companies increasingly incorporate artificial intelligence decision models into their business practices, they should consider using statistical and qualitative analyses to evaluate and reduce inadvertent discrimination, or disparate impact, induced by AI, say Christine Polek and Shastri Sandy at The Brattle Group.

• Eye On Compliance: Service Animal Accommodations

  

  A Michigan federal court's recent ruling in Bennett v. Hurley Medical Center provides guidance on when employee service animals must be permitted in the workplace — a question otherwise lacking clarity under the Americans with Disabilities Act that has emerged as people return to the office post-pandemic, says Lauren Stadler at Wilson Elser.

• Joint Employment Mediation Sessions Are Worth The Work

  

  Despite the recent trend away from joint mediation in employment disputes, and the prevailing belief that putting both parties in the same room is only a recipe for lost ground, face-to-face sessions can be valuable tools for moving toward win-win resolutions when planned with certain considerations in mind, says Jonathan Andrews at Signature Resolution.

• 3rd Circ. Harassment Ruling Supports Proxy Liability Theory

  

  The Third Circuit's recent decision in O'Brien v. Middle East Forum, endorsing the proxy theory of liability under Title VII for the first time, aligns the court with multiple other circuits and demonstrates that no one is above workplace prohibitions on harassment, says Kathryn Brown at Duane Morris.

• What Employers Need To Know About New Breastfeeding Law

  

  The recently enacted federal PUMP Act expands employers' existing obligations to provide breaks and space for certain employees to express breast milk, so employers should review the requirements and take steps to ensure that workers' rights are protected, say Sara Abarbanel and Katelynn Williams at Foley & Lardner.

• Water Cooler Talk: Termination Lessons From 'WeCrashed'

  

  Tracey Diamond and Evan Gibbs at Troutman Pepper chat with Fulton Bank’s Allison Snyder about how the show “WeCrashed” highlights pitfalls companies should avoid when terminating workers, even when the employment is at will.

• Whole Foods Win Shows Workplace Rules Can Shield Cos.

  

  In Kinzer v. Whole Foods Market, a Massachusetts federal judge recently ruled against employees alleging they faced retaliation for wearing Black Lives Matter masks to work, demonstrating that carefully written and universally applied workplace policies can protect employers from Title VII discrimination claims, says Elizabeth Johnston at Verrill Dana.

• Disability Reprisal Ruling Sets Flawed Standard Of Proof

  

  The U.S. Merit Systems Protection Board's flawed analysis in Pridgen v. Office of Management and Budget, which held a federal ex-employee must show she was fired solely in retaliation for a prior discrimination complaint, relies on a deeply mistaken interpretation of how labor laws and the U.S. Supreme Court apply the "but-for" causation standard to reprisal claims, says George Chuzi at Kalijarvi Chuzi.

• New Rulings Show Job Duties Crucial To Equal Pay Act Claims

  

  Two recent decisions from the Fourth and Tenth Circuits emphasize that it is an employee's actual responsibilities, and not just their job title, that are critical to a pay discrimination claim under the Equal Pay Act and can offer some lessons for employers in avoiding and defending these claims, say Fiona Ong and Lindsey White at Shawe Rosenthal.