Discrimination

Expert Analysis

• 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.

• An Employer's Overview Of AI Legislation In 5 Jurisdictions

  

  Many employers are likely aware of the July 5 enforcement date for New York City's artificial intelligence law, but there are also proposals in Massachusetts, New York, New Jersey, Vermont and Washington, D.C., and a comparison illustrates the emerging legislative trends for AI employment decision tools, say attorneys at Gibson Dunn.

• Handbook Hot Topics: Remote Work Policies

  

  Implementing a remote work policy that clearly articulates eligibility, conduct and performance expectations for remote employees can ease employers’ concerns about workers they may not see on a daily basis, says Melissa Spence at Butler Snow.

• No Blank Space In Case Law On Handling FMLA Abuse

  

  Daniel Schwartz at Shipman & Goodwin discusses real-world case law that guides employers on how to handle suspected Family and Medical Leave Act abuse, specifically in instances where employees attended or performed in a concert while on leave — with Taylor Swift’s ongoing Eras Tour as a hypothetical backdrop.

• 'Miss Manners' Scenario Holds Lessons On Pregnancy Bias

  

  A recent Washington Post "Miss Manners" column, in which a pregnant employee expressed concern about her boss's admonitions against having children, provides an opportunity to evaluate what exactly constitutes pregnancy discrimination, says Robin Shea at Constangy.

• Cos. Should Plan To Protect DEI Before Supreme Court Ruling

  

  With the U.S. Supreme Court apparently poised to reject affirmative action in education with its pending decisions in Students for Fair Admissions v. Harvard and SFFA v. University of North Carolina, employers should begin preparing their response to the likely ensuing challenges to corporate diversity programs, says Keisha-Ann Gray at Proskauer.

• Water Cooler Talk: Bias Lessons From 'Partner Track'

  

  Tracey Diamond and Evan Gibbs at Troutman Pepper chat with CyberRisk Alliance's Ying Wong, about how Netflix's show "Partner Track" tackles conscious and unconscious bias at law firms, and offer some key observations for employers and their human resources departments on avoiding these biases.

• Accommodating Disabled Employees Is Rarely A Hardship

  

  Since tools for granting disabled employees' reasonable accommodation requests are readily available and affordable — as illustrated by a recent U.S. Department of Labor Office of Disability Employment Policy report — it should be much harder for employers to prove undue hardship in granting these requests, says Kamran Shahabi at Valiant Law.

• Minimizing Discrimination Risks In Export Control Compliance

  

  A recently issued U.S. Department of Justice fact sheet on avoiding immigration-related discrimination in U.S. export control compliance should help employers learn to walk a tightrope to ensure their good faith compliance efforts do not unintentionally create risks, say attorneys at Baker McKenzie.

• 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.