Category: Civil Rights

The DEI Stalemate: Paying the Price for the Wrong Move

In a unique, interactive session that was part of the firm’s annual In-House Counsel seminar, participants evaluated potential DEI outcomes by analyzing three fictional scenarios. With elements pulled from real-life cases, the discussion illustrated how the stakes can become increasingly high with DEI practices.

Each participant assumed a different role, from in-house counsel and employee to accuser and accused, creating a lively examination of the benefits of DEI and the challenges associated with implementation, as well as how to develop solutions for evolving issues in the DEI landscape.

The discussion was led by Ken Gray, leader of the Labor and Employment Law Group, X. Lightfoot, an employment and personal injury attorney, and Avery J. Locklear, a labor and employment attorney.

The Technology Company Scenario

The first scenario involved a well-intentioned technology company that recently hired a new SVP in charge of Diversity, Equity, and Inclusion (DEI), Jordan Ellis. The business in question is a tech leader with over 10,000 employees across the U.S.

Ellis was asked to perform an assessment of the company’s workforce and leadership diversity. He found a number of areas in need of improvement, including female representation in leadership, Black/African American representation in leadership, and Asian/Hispanic representation in leadership.

Tasked with improving these metrics by the CEO, Ellis re-evaluated the Director of Communications role held by John Roe, a White man with a strong track record. Ellis then made the decision to inform Roe of a strategic shift within the company and relieved him of his duties.

The role was split into two new positions that were filled by two qualified deputies: one a White woman, the other a Black woman. Ellis believed the move aligned with the company’s DEI goals, representing a strategic step in making the leadership more inclusive and diverse.

Potential Response to Litigation?

The audience was asked to determine if any possible defense asserted by the company in response to a claim made by Roe represented a house of cards. “This was a fairly clear example of discrimination in relation to Title VII,” noted Gray, “which prohibits discrimination based on race, color, religion, sex, and national origin.”

The scenario was based on a real case, Duvall v. Novant Health, Inc. “In this case, a white management level employee who received above average evaluations got the axe,” said Gray. “It was a one-week jury trial, and the jury awarded $10 million.”

The decision made clear that it is permissible for employers to use DEI programs; however, these programs may not form the basis for adverse employment decisions.

“Some call this reverse discrimination, but I just call it discrimination. It’s important to note that the Act doesn’t say in regard to sex, the female sex, or in regard to race, the Black race or the Brown race. It just says race, it just says sex,” Gray explained.

The case established a significant precedent and illustrated a pitfall associated with poorly implemented DEI programs.

A Venture Capital Fund’s Contested Contest

The next scenario involved a venture capital fund interested in supporting businesses led by women of color. To close the funding gap, the fund created a grant contest with a prize of $50,000, growth tools, and mentorship opportunities.

Eligibility was open to Black women who were U.S. residents, with businesses that were at least 51 percent Black woman-owned. The audience discussed potential legal issues an in-house attorney could face as a result of the contest, which included an entry form with official competition rules.

The rules were explicit, stating in all caps that, “BY ENTERING THIS CONTEST, YOU AGREE TO THESE OFFICIAL RULES, WHICH ARE A CONTRACT…”

Two companies with owners who were not Black women were rejected after submitting applications for the contest. The Chief Legal Officers for both companies, Vegan Now and Well Soul, were members of the Collective of Corporate Counsel (CCC), a national bar association promoting the common business interests of in-house counsel through education, networking, and advocacy.

Would it be permissible for CCC to sue on behalf of Vegan Now and Well Soul? Did the rules on the entry form constitute a contract? The audience considered these and other questions.

The contention of CCC was that the form constituted a contract since the potential contest winners entered into a bargain-for-exchange when they applied. CCC’s argument was based on 42 USC § 1981, a federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts.

CCC also contended that the contest violated section 1981 due to its terms, as it categorically excluded non-black applicants from eligibility because of race. “If this sounds familiar, the reason is that it mirrors the factual pattern of a case that went before the 11th Circuit Court of Appeals,” commented Lightfoot.

The case involved the American Alliance for Equal Rights and a venture capital fund out of Atlanta, the Fearless Fund. “Ultimately, the court ruled that the membership organization did have standing to sue on behalf of its members, and the contest likely violated Section 1981 of the Civil Rights Act of 1866,” added Lightfoot.

The Fearless Fund settled the lawsuit and discontinued the contest as a response.

Breaking Boundaries Baristas

In the final scenario, the team explored how a well-intentioned coffee shop owner brewed trouble in her organization with a DEI policy gone wrong. Hiring people of diverse backgrounds and creating a welcoming environment for her team was a central focus for the owner, Linda Harper, who operates three local branches with 20 employees.

One of Linda’s employees, Sam Rowe, was assigned female at birth. “Sam has been living as a man and recently shared that his new pronouns are he/him,” said Locklear. “Though Sam’s announcement was mostly accepted, some of the team didn’t felt comfortable with his transition.”

A heterosexual female colleague, Olivia Spencer, struggled to adapt to Sam’s pronouns and had to be corrected multiple times. A heterosexual male colleague, Ben Paulson, admits the transition makes him somewhat uncomfortable. However, he has respected Sam’s pronouns.

Locklear asked whether Olivia’s and Ben’s behavior has risen to the level of creating a hostile work environment. The answer, of course, is that it depends and, as it is with so many other topics within the legal profession, there is no such thing as a one-size-fits-all, bright-line rule that can be applied to every situation.

Slurs and the misuse of pronouns by co-workers can encourage similar behavior from customers. To illustrate this idea, Gray described a case in which he assisted a client in 2016. “People would approach the coworkers and ask whether their colleague was a man or a woman,” he said. “This would occasionally result in slurs, and the customers would pick up on that, perpetuating the hostile work environment.”

The facts have to be evaluated in the context of every situation. “It boils down to whether the behavior was so severe and pervasive it created a hostile work environment. There’s no magic number of how many harassing events need to occur,” advised Locklear. “It’s based on all the circumstances.”

The EEOC issued new guidance on transgender employees in the workplace in April of 2024. A key aspect of this guidance was the misgendering of employees in front of coworkers and customers to the extent it made them uncomfortable.

“If it’s a long-term employee, there are going to be mistakes, and everyone has to give each other a little bit of grace, but whenever in doubt, you can always just use that person’s name,” added Locklear.

Mandatory Work Events

In an effort to foster unity and celebrate Pride Month, Linda organizes a mandatory drag queen night for the entire workforce. Her hope is that an evening with celebrity impersonator, Holly Wood, could bring the team together through a shared experience emphasizing inclusion.

While some employees are pumped about the event, some, including Ben and Olivia, are not comfortable attending. Sam also feels uneasy, sensing the event is directed at him in a way that feels awkward instead of supportive.

Ben asks to be excused from the event; Linda reiterates that attendance is mandatory and disciplinary action will follow if employees fail to attend.

The day after, Olivia tells Linda she feels the company is “too woke,” and she no longer enjoys working there. Sam describes new tension with his colleagues and feels some are treating him differently as a result of the event.

After some reflection, Linda realizes her approach may have inadvertently caused discomfort among the employees she wanted to support with her commitment to inclusivity. To move forward, she begins considering new ways to promote understanding and respect within her team.

The audience considered what went wrong and there was vast consensus that the event should not have been mandatory.

“This could have been fun, but making it mandatory was a bad idea, especially since it was a social event and an employee had already expressed discomfort,” Locklear explained.

Though the scenario was farfetched, it holds a number of important lessons for employers, Locklear added. “One is to educate your workforce,” she said. “Another could be to update your policies so a person who is transitioning knows who they can talk to about it.”

Any information provided in confidence should remain confidential. Being open about new ideas and willing to have frank discussions with employees is advisable. Assessing whether dress codes are gender-neutral could be another proactive way to foster a positive work environment.

Conclusion

The employment attorneys highlighted well-intentioned actors taking steps that caused issues for members of their fictional workforces. The team cautions in-house counsel against unintended consequences and offers training insights in Part 2 of the session.

© 2025 Ward and Smith, P.A.. All Rights Reserved.
For more on the DEI Stalemate, visit the NLR Labor Employment and Civil Rights sections.

2024 Title IX Regulations Vacated Nationwide

On January 9, 2025, the Sixth Circuit Court of Appeals decided the case of Tennessee v. Cardona, vacating the 2024 Title IX regulations nationwide. The court ruled that the issuance of the 2024 regulations exceeded the Department of Education’s authority and was unconstitutional on multiple grounds.

The ruling may be appealed, but for now, institutions covered by Title IX should revert to compliance with their policies in effect under the 2020 Title IX regulations.

The 2024 Title IX regulations, which took effect on August 1, 2024, had faced several challenges that led to injunctions with varying geographic scopes. As a result, prior to the Cardona decision, the Title IX regulations were only effective in about half of the states across the U.S.

© 2025 Varnum LLP
For more on the Department of Education, visit the NLR Public Education Services section

OCR Proposed Tighter Security Rules for HIPAA Regulated Entities, including Business Associates and Group Health Plans

As the healthcare sector continues to be a top target for cyber criminals, the Office for Civil Rights (OCR) issued proposed updates to the HIPAA Security Rule (scheduled to be published in the Federal Register January 6). It looks like substantial changes are in store for covered entities and business associates alike, including healthcare providers, health plans, and their business associates.

According to the OCR, cyberattacks against the U.S. health care and public health sectors continue to grow and threaten the provision of health care, the payment for health care, and the privacy of patients and others. In 2023, the OCR has reported that over 167 million people were affected by large breaches of health information, a 1002% increase from 2018. Further, seventy nine percent of the large breaches reported to the OCR in 2023 were caused by hacking. Since 2019, large breaches caused by successful hacking and ransomware attacks have increased 89% and 102%.

The proposed Security Rule changes are numerous and include some of the following items:

  • All Security Rule policies, procedures, plans, and analyses will need to be in writing.
  • Create, maintain a technology asset inventory and network map that illustrates the movement of ePHI throughout the regulated entity’s information systems on an ongoing basis, but at least once every 12 months.
  • More specificity needed for risk analysis. For example, risk assessments must be in writing and include action items such as identification of all reasonably anticipated threats to ePHI confidentiality, integrity, and availability and potential vulnerabilities to information systems.
  • 24 hour notice to regulated entities when a workforce member’s access to ePHI or certain information systems is changed or terminated.
  • Stronger incident response procedures, including: (I) written procedures to restore the loss of certain relevant information systems and data within 72 hours, (II) written security incident response plans and procedures, including testing and revising plans.
  • Conduct compliance audit every 12 months.
  • Business associates to verify Security Rule compliance to covered entities by a subject matter expert at least once every 12 months.
  • Require encryption of ePHI at rest and in transit, with limited exceptions.
  • New express requirements would include: (I) deploying anti-malware protection, and (II) removing extraneous software from relevant electronic information systems.
  • Require the use of multi-factor authentication, with limited exceptions.
  • Require review and testing of the effectiveness of certain security measures at least once every 12 months.
  • Business associates to notify covered entities upon activation of their contingency plans without unreasonable delay, but no later than 24 hours after activation.
  • Group health plans must include in plan documents certain requirements for plan sponsors: comply with the Security Rule; ensure that any agent to whom they provide ePHI agrees to implement the administrative, physical, and technical safeguards of the Security Rule; and notify their group health plans upon activation of their contingency plans without unreasonable delay, but no later than 24 hours after activation.

After reviewing the proposed changes, concerned stakeholders may submit comments to OCR for consideration within 60 days after January 6, by following the instructions outlined in the proposed rule. We support clients with respect to developing and submitting comments they wish to communicate to help shape the final rule, as well as complying with the requirements under the rule once made final.

Jackson Lewis P.C. © 2024
For more on HIPAA, visit the NLR Health Law Managed Care section

OFCCP Requiring Construction Companies to Submit Monthly Data Reports starting April 2025

OFCCP announced it is reinstating a monthly reporting requirement (CC-257 Report) for federal construction contractors, nearly 30 years after discontinuing it. Beginning April 15, 2025, covered construction contractors must submit a report to OFCCP by the 15th of each month, with detailed data on its number of employees and work hours by race/ethnicity and gender.

In its announcement, the Agency explained it will use the monthly report to further its “mission of protecting workers in the construction trades, as employment discrimination continues to be a problem in the construction industry.” OFCCP says the report will allow the Agency to strengthen both enforcement and compliance assistance.

OFCCP proposed reinstating CC-257 in February 2024, and in its Supporting Statement, indicated that the report would allow the Agency to “better identify if there are potential hiring or job assignment issues that warrant further investigation during a compliance evaluation.”

The new reporting requirement will include data on number of employees and trade employees’ hours worked by race and gender within each Standard Metropolitan Statistical Area (SMSA) or Economic Area (EA) each month. For contractors with employees working on multiple projects, either within a SMSA/EA or across several areas, gathering and preparing the relevant data each month may prove challenging. Contractors must also include whether the work performed is designated by OFCCP as a Megaproject. Other requirements include the contractor’s unique entity identifier (UEI) or Data Universal Numbering System (DUNS) number, both of which OFCCP uses to identify entities doing business with the federal government, and a list of the federal agencies funding their projects.

The Agency published Frequently Asked Questions on its CC-257 Report landing page and intends to provide additional compliance assistance, including a webinar, in early 2025.

Jackson Lewis P.C. © 2024
For more on the OFCCP, visit the NLR Government Contracts Maritime Military section

Federal Contractors Beware – More Data Disclosures Coming!

On October 29, 2024, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a Freedom of Information Act (FOIA) notice, inviting federal contractors to respond to FOIA requests that the OFCCP received related to federal contractors’ 2021 Type 2 EEO-1 Consolidated Reports. These reports, required of federal contractors and subcontractors with at least 50 employees, contain data critical to the government’s diversity efforts consistent with anti-discrimination mandates under Title VII and Executive Order 11246. Contractors have previously relied on FOIA Exemption 4 to protect against disclosing sensitive commercial information that could impact competitive positioning, but in late December 2023 as previously reported here, a federal court ruling concluded that certain demographic data did not qualify as confidential under FOIA Exemption 4. That court decision may spur an increase in FOIA requests for EEO-1 reporting information.

Contractors who wish to object to the disclosure of their EEO-1 reporting information must do so via OFCCP’s online portal, email, or mail on or before December 9, 2024. Per the OFCCP’s notice, contractors can object to releasing their 2021 EEO-1 Type 2 data by providing evidence showing the data satisfies FOIA Exemption 4. To do this, contractors should:

  • Specifically identify the objectionable data;
  • Explain why this data is commercial or competitive to render it confidential;
  • Outline the processes the contractor has in place to safeguard the data;
  • Identify any prior assurances or expectations that the data would remain confidential; and
  • Detail the damage that would occur if the data were disclosed by conducting assessments to see how disclosure would impact business operations.

In addition to raising timely objections to disclosure of data, contractors should also implement clear policies to maintain a consistent approach to data confidentiality. Specifically, contractors should be thoughtful and consistent as to how they define confidential information and the protection measures they take related to such information.

FOIA requests and court decisions in this space will likely continue to make striking a balance between government transparency and protecting contractors’ confidential business information more difficult. To navigate these changes, federal contractors should remain vigilant by staying informed, preparing objections to FOIA requests, and consulting with legal counsel to ensure compliance with this evolving area of law.

Copyright © 2024, Hunton Andrews Kurth LLP. All Rights Reserved.
For more on Federal Contractors, visit the NLR Government Contracts Maritime Military section.

The Spooky Consequences of Halloween Celebrations in the Workplace

There is no greater Halloween horror for employers than a workplace celebration that creates legal risks such as inappropriate costumes or safety hazards, among other issues. Thus, there are many considerations when planning an office celebration for this spooky holiday. If you are a manufacturer hosting an office Halloween party, consider following these three tricks to make the best out of your workplace treat.

1. Provide Guidance on Expectations

First and foremost, manufacturers should be transparent about expectations surrounding employee participation including costumes. With regard to costumes, when crafting guidance, manufacturers should consider both civility as well as safety, especially if the employees will be permitted to wear their costumes during the workday. For example, employees should understand what costumes or outfits do and do not meet manufacturing floor safety guidelines. Employees should also be expressly reminded that costumes must conform to all employer policies including anti-harassment, discrimination and respect policies and that costumes, outfits or accessories that violate such policies will not be tolerated.

This election year in particular, some employees may don political costumes. The free speech rights under the First Amendment of the U.S. Constitution do not apply to employees working for private manufacturers. Thus, private manufacturers can generally establish rules that, for example, prohibit costumes that support (or criticize) a political candidate or party. That said, manufacturers should be aware that several states have laws regulating when employers can lawfully discipline employees for political activity; further, there are state and federal laws that may be implicated with regard to employees expressing political views. If manufacturers are considering disciplining an employee for a political costume, they should first consult with legal counsel.

2. Prioritize Safety

There are more safety hazards at workplace Halloween parties than the cavity causing candy. This is especially true if the celebration is being held on the manufacturer’s shop floor. Manufacturers should ensure that all of the decorations in the workplace comply with the fire and safety codes set forth by local governments and by OSHA. Manufacturers should also avoid activities that inherently involve risks and could result in workplace injuries, such as pumpkin carving contests.

Lastly, manufacturers should carefully consider whether to serve alcohol. If the celebration is being held on the shop floor, it is highly recommended that alcohol is not served, especially if heavy machinery is accessible. For celebrations held elsewhere, manufactures should consider taking steps to ensure alcohol is consumed in moderation and is not central to the party, and follow best practices for serving alcohol; when considering tips for limiting alcohol consumption or its impact on employees, employers should consider only serving beer and wine, serving a meal (as compared to light appetizers), limiting the amount of alcohol served by, for example, using a drink ticket system, using bartenders to serve alcohol, serving non-alcoholic options; among other practices. In some circumstances, manufacturers may be legally responsible for the conduct of their intoxicated employees.

3. Make it Optional

Workplace celebrations are a great way to boost employee morale and help foster employee relationships. That said, these celebrations should generally be optional. Manufacturers should keep in mind that employees may not want to attend a Halloween party for various reasons, including, for example, their religious practices and beliefs; therefore, ensuring that the party is optional may support all employees including those that do and do not celebrate Halloween.

If attendance is mandatory, there may be implications from a workers’ compensation perspective if there are any injuries or illnesses. Further, manufacturers should pay the employees for their time pursuant to the Fair Labor Standards Act (FLSA) and applicable state laws regardless of whether the celebration was held outside of normal working-hours. Requiring non-exempt employees to attend unpaid celebrations can expose the manufacturer to wage and hour claims in the future.

Copyright © 2024 Robinson & Cole LLP. All rights reserved.

by: Abby M. Warren, Madison C. Picard of Robinson & Cole LLP

For more news on Workplace Halloween Party Considerations, visit the NLR Labor & Employment section.

Recent Scrutiny of English-Only Workplace Rules Comes into Focus During National Hispanic Heritage Month

National Hispanic Heritage Month is celebrated each year from September 15 to October 15 in recognition of the contributions of Hispanic and Latino people to the history, culture, and economy of the United States. During this time, several Latin American countries celebrate their independence days. Employers can also use this month as a reminder to remain compliant with anti-discrimination and anti-harassment laws.

Quick Hits

  • National Hispanic Heritage Month starts on September 15 and ends on October 15 each year in the United States.
  • Hispanic workers constitute approximately 19 percent of the U.S. labor force, or approximately 32 million people, and that proportion continues to rise. Foreign-born workers, of which Hispanics account for 47.6 percent, make up 18.6 percent of the U.S. civilian workforce.
  • The U.S. Equal Employment Opportunity Commission (EEOC) reports that in 2023 just nineteen lawsuits alleging race or national origin discrimination cost employers $4.9 million.

Recent EEOC Cases

Employers usually have anti-discrimination and anti-harassment policies to protect Hispanic/Latino employees and applicants from employment discrimination. However, protections from discrimination based on national origin—particularly, workplace policies prohibiting language discrimination—sometimes are overlooked by employers. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on national origin, and the EEOC considers an individual’s primary language “often an essential national origin characteristic.” (See 29 C.F.R. § 1606.7(a).)

This means employers generally may not mandate that employees or applicants speak English. While employers may require English in certain employment situations, such as when speaking only English is needed to ensure safe and efficient communication for specific tasks, an English-only rule must be justified by business necessity and put in place for nondiscriminatory reasons. These situations will typically be specified, limited, and communicated to all employees in a language they understand. Recent cases show how this aspect of Title VII is being enforced.

On June 26, 2024, the EEOC announced a settlement with a housekeeping company that allegedly required its employees in California to speak only English at all times. As a result, the employer agreed to pay monetary damages to the complainant—a Spanish-speaking housekeeper who worked in a nursing home in Concord, California. Additionally, the employer agreed to provide training for its California employees and to revise its policies to clearly state that it would not restrict languages spoken by employees who didn’t perform patient care—and that employees had the right to speak their preferred languages in the workplace. The employer agreed to issue its policies in Spanish, English, and any other language spoken by 5 percent or more of the employer’s California workforce. The EEOC stressed that “[c]lient relations and customer preference do not justify discriminatory [English-only] policies.”

On March 29, 2023, the EEOC announced that a staffing firm based in Washington and Oregon had agreed to pay $276,000 to settle discrimination and retaliation claims. Allegedly, the employer had imposed a no-Spanish rule, which lacked adequate business justification, and then had fired five employees who opposed the rule and continued to speak Spanish in the workplace. The employer agreed to provide an anonymous complaint process for employees, update its policies to be in English and Spanish, perform its investigations promptly, and train its staff on the new anti-discrimination policies. The director of the EEOC’s Seattle field office warned employers that they “should think twice before imposing limitations on what languages are ‘allowed’ to be used at work.” She further warned that in the absence of “a legitimate business necessity, such policies [were] likely to discriminate against workers based on their national origin.”

A Growing Demographic

In 2023, there were 65.2 million Hispanic people in the United States, representing approximately 19.5 percent of the U.S. population. Hispanic workers make up 19 percent of the U.S. labor force, and those rates continue to grow, according to the U.S. Census Bureau and the U.S. Bureau of Labor Statistics (BLS). By 2030, BLS projects Hispanic workers will constitute 21 percent of the U.S. labor force.

Looking Ahead

The EEOC is likely to scrutinize employers’ English-only rules and policies as potentially violative of Title VII, as national origin discrimination includes discrimination based on language, ancestry, place of origin, origin (ethnic) group, culture, and even accent. Employers may wish to review their hiring and onboarding policies and practices to ensure compliance with Title VII and avoid potential legal issues, as recent cases demonstrate the EEOC’s active enforcement of protections against national origin discrimination.

To mitigate the risk of costly litigation, employers may also want to consider implementing management training focused on ensuring managers understand that requiring English at all times may be considered discrimination on the basis of national origin.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more on Workplace Rules, visit the NLR Labor Employment section.

Prayers for Religious Holiday Time Off May Need to be Accommodated by Employers

Knowing several religious holidays are coming up soon, employers can take steps to avoid triggering religious discrimination and reasonable accommodation lawsuits. Consistently applying paid time off rules can help to prevent discrimination, retaliation, and religious reasonable accommodation claims.

Quick Hits

  • Private and public employers with fifteen or more workers must accommodate reasonable requests from workers to observe religious holidays (pursuant to federal law; however, state law coverage varies and might only require one or more workers).
  • Employers may avoid confusion by clearly stating leave policies and company holidays in the employee handbook.
  • Employers can use online systems or software to detect patterns in approving or denying requests for leave on religious holidays.

With many religious holidays taking place in the next two months, employers are likely to see many requests for time off for religious celebrations.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers for practicing their religion unless the worker’s religious practice cannot reasonably be accommodated without an undue hardship to the business. If a manager approves holiday leave requests from Christian employees, but rejects holiday leave requests from Muslim or Jewish employees, that could raise the risk of religious discrimination lawsuits. Additionally, some states, including California, also prohibit religious discrimination and require reasonable accommodation.

In June 2023, in Groff v. DeJoy, the Supreme Court of the United States ruled that employers cannot legally deny a valid religious accommodation request, unless they can show a substantial burden from a proposed religious accommodation. In Groff, an evangelical Christian postal worker sued the U.S. Postal Service for failing to accommodate his request to not work on Sundays for religious reasons. The Supreme Court held in favor of the postal worker and remanded the case to lower courts.

This decision raised the bar for employers to invoke an undue hardship defense. A de minimiscost is no longer enough to demonstrate an undue burden. If an employee holds a sincere religious belief or practice that conflicts with a workplace policy or staffing schedule, then the employer must engage in an interactive process to see whether an accommodation can be made without substantially interfering with its overall business operations.

Some workplaces, including in the healthcare, hospitality, and transportation industries, require staffing 24/7 every day. In that situation, it may be possible to coordinate schedules so that leave requests can be honored for religious holidays. For example, non-Jewish employees may agree to work during Jewish holidays, and non-Muslim workers may agree to work during Muslim holidays. And, then, those employees might cover gaps in staffing caused by time off for Christian holidays. Compliance with the religious accommodation laws contemplates this type of interactive process and teamwork to find an appropriate solution.

If this type of shift-swapping is not possible or practical, it may be helpful for an employer to document why that is the case.

Next Steps

Employers may wish to review their religious accommodation request procedures, leave policies, scheduling process, and related practices to ensure that managers do not engage in religious discrimination when they approve or deny leave requests. In addition, employers may wish to train managers to apply all of the time off rules consistently.

These holidays are upcoming:

  • The Jewish holidays Rosh Hashanah and Yom Kippur fall on October 3, 2024, and October 12, 2024, respectively. Hanukkah will be celebrated December 25 through January 2, 2025.
  • The Hindu holiday Diwali falls on November 4, 2024.
  • The Buddhist holiday Bodhi Day falls on December 8, 2024.
  • The Christian holiday Christmas Day falls on December 25, 2024.
© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Supreme Court Ruling on Affirmative Action and Impact on Companies’ DEI Programs

In June 2023, the US Supreme Court voted 6-3 in a decision that significantly changed the way colleges and universities used affirmative action in their admissions. The targets of the lawsuit were Harvard University and University of North Carolina for alleged racial discrimination in admissions.

The Ruling 

The Court ruled that race conscious college admission policies aimed at maintaining racially diverse student bodies violated the Equal Protection Clause of the Fourteenth Amendment. The court, though ruling out admissions solely based on race, did state, “Nothing in the opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life.” It should be noted that court did not impose the same ruling on military academies because of their “distinct interest” in the benefits of a diverse officer corp. Though the ruling has caused an uproar in both academic and business communities, we need to remember the ruling does not significantly impact effect corporate America, yet.

Race Based Employment 

The affirmative action ruling only applies to colleges and universities admissions processes. Employers are subject to Title VII of the Civil Rights Act of 1964, which is a federal law that prohibits employment discrimination based on certain factors which include race, color, religion sex (including pregnancy, sexual orientation, and gender identity) and national origin. Further, Title VII applies to all aspects of employment, including, but not limited to recruiting, hiring, promoting training and discharge. Several states, like Massachusetts, have their own version of Title VII to protect both employers and employees. Despite these protections, employers are still cautious with implementing and maintaining diversity equity and inclusion (DEI) programs. This is probably true because most companies do not see the difference between the two. Though they are similar, Title VII protects the employer and employee, while DEI programs aim to enhance the workplace experience and to some extent maximize profits. Plus, most DEI programs go beyond race based concerns and tend to embrace various other aspects of people’s lives that may be subject to bias.

Attack on DEI 

Since the ruling by the Supreme Court, several state attorney generals sent letters to Fortune 500 companies stating that race-based preferences “whether under the label of diversity, equity and inclusion or otherwise” may violate federal and state antidiscrimination laws. In addition, corporations like Amazon and Comcast have had their DEI practices challenged. Several states like Florida have proposed and passed anti-DEI legislation banning certain DEI practices in state agencies. All this fervor has created the concern that the “right case” can outright destroy DEI practices and programs. Most recently, which seems like an act out of an abundance of caution, the well-known longstanding Society for Human Resources Management (SHRM) changed their focus from Inclusion, Equity and Diversity (IE&D) to Inclusion and Diversity (I&D). The concern relating to the future of DEI is palatable.

Safety Net for DEI Programs 

The DEI movement is far from defeated, we must remember DEI and Affirmative Action are not the same. DEI programs, though want to ensure that various races feel accepted in the workplace, should focus on anti-bias, inclusion of all employees from various backgrounds, allyship and the appreciation of everyone’s professional and personal life experiences. You can call your program whatever you want, but it is really the approach used by employers that will survive future legal scrutiny.

©2024 CMBG3 Law, LLC. All rights reserved.
For more on Affirmative Action, visit the NLR Civil Rights section

EEOC Unveils Final Rule Implementing Pregnant Workers Fairness Act PWFA

Go-To Guide:
  • Effective June 18, employers covered by the Pregnancy Workers Fairness Act (PWFA) are required to offer reasonable workplace accommodations to workers who are pregnant or have a condition related to pregnancy or childbirth.
  • PWFA applies to covered entities, which include public and private employers with 15 or more employees, unions, employment agencies, and the federal government.
  • A preliminary injunction was entered on June 17, which “postpones the effective date of the Final Rule’s requirement that covered entities provide accommodation for purely elective abortions of employees that are not necessary to treat a medical condition related to pregnancy” for the states of Louisiana and Mississippi.
  • Covered employers should review the requirements of the PWFA to ensure that their workplace policies and procedures allow for the requisite accommodations under the Act and follow current challenges to accommodations regarding elective abortions under the law.

The U.S. Equal Employment Opportunity Commission (EEOC) final rule implementing the Pregnant Workers Fairness Act (PWFA) went into effect June 18, 2024, but not without legal challenge.

The final rule, covered in a previous GT Alert, requires employers to offer reasonable workplace accommodations to workers who are pregnant or have a condition related to pregnancy or childbirth. The rule includes an exception for employers if the requested accommodation would cause the business an undue hardship.

However, the requirement of a workplace accommodation for “purely elective abortions” has been enjoined from implementation and enforcement in the states of Louisiana and Mississippi and against four Catholic organizations. On June 17, 2024, Judge David C. Joseph in the U.S. District Court for the Western District of Louisiana ruled that the EEOC overstepped its authority by requiring workplace accommodations for “purely elective abortions.”

The motions for preliminary injunction, filed by the states of Louisiana and Mississippi, as well as four entities affiliated with the Catholic Church, sought injunctive relief to the extent that the PWFA requires employers to accommodate purely elective abortions of employees. The court rejected the EEOC argument “that Congress could reasonably be understood to have granted [it] the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs – to provide workplace accommodation for the elective abortions of employees.”

Based on its analysis, the court entered a preliminary injunction which “postpones the effective date of the Final Rule’s requirement that covered entities provide accommodation for the elective abortions of employees that are not necessary to treat a medical condition related to pregnancy” for the states of Louisiana and Mississippi and any agency thereof, any covered entity under the final rule with respect to all employees whose primary duty station is located in Louisiana or Mississippi, and the entities affiliated with the Catholic Church that sought the court’s involvement.1

What should employers know to ensure compliance with the PWFA, given the limited injunctive relief issued? Below is a summary of the law and considerations for implementing the rule, which is now effective.

Application

  • The PWFA applies to employees, which include applicants and former employees where relevant based on Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978.
  • The PWFA applies to covered entities, which include public and private employers with 15 or more employees, unions, employment agencies, and the federal government.
  • The states of Louisiana and Mississippi; employers located in Louisiana and Mississippi and with employees whose primary duty station is located within the states; and the U.S. Conference of Catholic Bishops, the Society of the Roman Catholic Church of the Diocese of Lake Charles, the Society of the Roman Catholic Church of the Diocese of Lafayette, and the Catholic University of America are not required to provide accommodations for the elective abortions of employees that are not necessary to treat a medical condition related to the pregnancy.

What Is Considered a ‘Known Limitation’?

  • A limitation is “known” to a covered entity if the employee, or the employee’s representative, has communicated the limitation to the covered entity.
  • The physical or mental condition may be a modest or minor and/or episodic impediment or problem.
  • An employee affected by pregnancy, childbirth, or related medical conditions that had a need or a problem related to maintaining their health or the health of the pregnancy. “Pregnancy, childbirth, or related medical conditions” includes uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.
  • An employee affected by pregnancy, childbirth, or related medical conditions who sought health care related to pregnancy, childbirth, or a related medical condition itself.
  • There is possible overlap between the PWFA and the Americans with Disabilities Act (ADA) because in these situations, the qualified employee may be entitled to an accommodation under either statute, as the protections of both may apply.

What Is an ‘Undue Hardship’?

  • An employer or covered entity does not need to provide a reasonable accommodation if it causes an undue hardship, meaning significant difficulty or expense, to the employer.

The PWFA Prohibits the Following Conduct by Covered Employers

  • Failure to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
  • Requiring an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
  • Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
  • Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
  • Punishing or retaliating against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation); and/or
  • Coercing individuals who are exercising their rights or helping others exercise their rights under the PWFA.

Non-Exhaustive List Of Examples of ‘Reasonable Accommodations’

  • Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
  • Changing food or drink policies to allow for a water bottle or food;
  • Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
  • Changing a uniform or dress code or providing safety equipment that fits;
  • Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
  • Telework;
  • Temporary reassignment;
  • Temporary suspension of one or more essential functions of a job;
  • Leave for health care appointments;
  • Light duty or help with lifting or other manual labor; or
  • Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Employer Training

  • Employers should consider training supervisors on how to respond to requests for accommodation.
  • Unlike requests for accommodation under the ADA, an accommodation pursuant to the PWFA may include a temporary suspension of essential job functions for qualified individuals (barring undue hardship to the employer).
  • Employees do not need to use specific words to request an accommodation to begin the interactive process.
  • Employers may not require that the employee seeking an accommodation be examined by a health care provider selected by the employer.
1 Further efforts to enjoin the implementation of the Rule were thwarted when the U.S. District Court for the District of Arkansas denied a motion for injunctive relief filed by a group of Republican state attorneys general on the grounds that the plaintiffs lacked standing to challenge the rule.
©2024 Greenberg Traurig, LLP. All rights reserved.
For more on the PWFA, visit the NLR Labor Employment section.