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European Citizens Sue States for Breach of Human Rights Resulting from Failure to Take Stronger Climate Action

On September 27, 2023, six “Portuguese young people” were heard by the European Court of Human Rights (ECtHR) in a lawsuit against 32 European governments, including all EU member states, alleging that their failure to act fast enough against climate change has violated the applicants’ human rights to life, physical and mental wellbeing. The applicants claim that the respondents are failing to fulfil their obligations under the Paris Agreement to limit global warming.

The original application cites a number of contributions to climate change made by the respondent states: (i) permitting the release of emissions within national territory and offshore areas over which they have jurisdiction; (ii) permitting the export of fossil fuels extracted on their territory; (iii) permitting the import of goods, the production of which involves the release of emissions into the atmosphere; and (iv) permitting organizations within their jurisdiction to contribute to the release of emissions overseas. Taken together, the applicants say, the respondents have contributed to climate change and, while mitigation measures have been adopted, contributions to adverse climate change continues. The applicants are seeking an order from ECtHR requiring the respondent governments to take more ambitious action.

Describing the impact on them, the applicants say that climate change has contributed to harm to human health. In an expert report commissioned to supplement their application, the applicants say that Portugal is already experiencing the impact of climate change, including an increase in mean and extreme high temperatures, with heatwaves becoming more frequent. As a result, the region is also prone to wildfires – 120 people died and 500,000 hectares of land were burned during wildfires preceded by heatwaves. Responding to the application, a lawyer on behalf of Greece claimed that climate change cannot be directly linked to an adverse impact on human health, stating “[the] effects of climate change, as recorded so far, do not seem to directly affect human life or human health.” Lawyers on behalf of Portugal stated that the applicants failed to provide evidence of the specific damages caused by climate change on their lives.

The case was originally filed in September 2020. The September 27 hearing was one of the largest before the ECtHR, with 22 judges and 86 government lawyers, and took place following one of the hottest summers on record in Europe. A decision is expected in 2024.

Taking the Temperature: The claims made in this case echo certain conclusions reached in the United Nations’ first global stocktake on parties’ achievements under the Paris Agreement. The UN acknowledged that although significant progress has been made, there is a crucial need for nations to significantly enhance their clean energy ambitions if they are to achieve their Paris-aligned objectives.

In July 2023, we discussed the Grantham Institute’s report on trends in climate litigation and the types of strategies being employed by claimants. One of these included so-called government framework actions in which plaintiffs focus on a government’s response to climate change and potentially, its failure to implement policies or legislation. The case brought by the six Portuguese young people falls squarely within this category.

In June 2023, we discussed the lawsuit filed by, among others, Greenpeace and 12 Italian citizens against ENI S.p.A. alleging that ENI knew of the detrimental effect of fossil fuel burning since around 1970 but through “lobbying and greenwashing” continued to encourage extraction, thereby contributing to climate change, and violating the citizens’ rights to life, health and private and family life. In March of this year, a group of Swiss citizens accused the Swiss government of infringing on the right to life and health of elderly women via its climate-related policies. The case is pending in the European Court of Human Rights.

Comparable cases have also been filed in the U.S. In Montana, 16 residents—ranging from ages 2 to 18—commenced litigation claiming that they “have been and will continue to be harmed by the dangerous impacts of fossil fuels and the climate crisis,” and that the defendants have violated the Montana Constitution by fostering and supporting fossil fuel-based energy policies in the state that led to these conditions. In September this year, the court struck down on state constitutional grounds certain provisions of the Montana Environmental Policy Act (MEPA), which restricted Montana from incorporating the impact of greenhouse gas emissions or other forms of climate change in environmental reviews. Similar constitution-based climate-related suits against state governments are pending in other U.S. states.

Do Federal Civil Rights Laws Prohibit Discrimination Based on Sex and Age?

Harvard Business Review’s recent survey, “Women in Leadership Face Ageism at Every Age,” shines a bright light on the bleak reality of age discrimination against women in the workplace. The survey of 913 women leaders from across the United States in the higher education, faith-based nonprofit, legal, and health care industries found that supervisors and colleagues find women of every age unfit for leadership roles based on their age. Young women leaders are subjected to head pats and pet names and are often mistaken for students, interns, or support staff. Middle aged women leaders are discounted as having too many family responsibilities or being on the runway to menopause. Older women are largely erased from the work environment, facing assumptions that they are on their way out. This stands in stark contrast to older men, whom employers tend to regard as “wells of wisdom.” In short, when it comes to the workplace, age-related bias perpetually stands between women and recognition as leaders.

Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination in employment, identifies certain “protected classes” upon which bases employers may not discriminate: race, color, religion, sex, and national origin. A separate statute, the Age Discrimination in Employment Act (“the ADEA”), outlaws age discrimination in the workplace. Plaintiffs filing a lawsuit challenging employment discrimination typically must articulate a specific statute their employer has violated. In the case of sex-plus-age discrimination—that is, mistreatment based on the intersection of sex and age—neither statute standing alone captures the plaintiff’s experience.[1] This raises the question of how women facing uniquely gendered age bias in the workplace—like that outlined in the Harvard Business Review survey—can state legal claims a court will consider viable.

For the most part, federal courts have been skeptical of such claims.

A recent case, however, brought a new perspective to the question of sex-plus-age discrimination under federal law. On July 21, 2020, the United States Court of Appeals for the Tenth Circuit, the appellate court that covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, addressed the question “whether sex-plus-age claims are cognizable under Title VII.”[2] In Frappied v. Affinity Gaming Black Hawk LLC, nine female plaintiffs brought (among other claims) sex-plus-age claims for disparate impact and disparate treatment under Title VII, alleging they were terminated because Affinity discriminated against women over forty.[3] The older women, who had worked at the Golden Mardi Gras Casino, were laid off after the defendant purchased the casino in 2012. The terminations were largely unexplained. After the lower court dismissed their claims, the plaintiffs appealed.

The Tenth Circuit ruled in the plaintiffs’ favor, affirming the validity of sex-plus-age claims under Title VII alone. The court noted that it had allowed claims based on a combination of race and sex discrimination in Hicks v. Gates Rubber Co.[4]In Hicks, the court considered the combined effect of racial slurs and sexual harassment in a hostile work environment case. In Frappied, however, the court had to decide a novel question—whether an intersectional discrimination claim could be based on a second characteristic that is not protected by Title VII: age. Most courts that have considered such claims have refused to decide whether a plaintiff can challenge discrimination under an intersectional theory that the combination of the two protected characteristics led to the adverse action, or they have decided the plaintiff can prevail under one statute so the court does not have to decide whether the intersectional claim is viable. For instance, both the Second and Sixth Circuits have sidestepped the issue, making dispositive rulings based on other claims in plaintiffs’ complaints.^[5]

In Frappied, the Tenth Circuit noted that the Supreme Court had long held that Title VII prohibits “sex-plus” discrimination where the “plus” factor is not protected under the statute.[6] In Phillips v. Martin Marietta Corp.[7]the Supreme Court held that a policy against hiring women with preschool-age children violated Title VII, because men with preschool-age children were not subject to that policy. Even though “people with preschool-age children” is not a protected class, the Supreme Court recognized this to be a form of sex discrimination. The Tenth Circuit used the same reasoning to hold that if sex—which is protected under Title VII—“play[ed] a role in the employment action,” then the termination was impermissible even though the “plus” factor, age, is in another statute.[8] Borrowing from the Supreme Court’s analysis in Bostock,[9] which held that Title VII’s sex discrimination provision prohibits sexual orientation and gender identity discrimination in employment, the Tenth Circuit held that “if a female plaintiff shows that she would not have been terminated if she had been a man—in other words, if she would not have been terminated but for her sex—this showing is sufficient to establish liability under Title VII.[10]

While the outcome in Frappied is a positive development for civil rights in employment, in most jurisdictions there is no clear protection under federal law against sex-plus-age discrimination. The EEOC has long acknowledged the availability of such intersectional claims, but as mentioned, other sex-plus-age claims have made their way through the courts on occasion without success. The Tenth Circuit is the first and only federal appellate court to formally recognize these claims as viable under federal law.

However, there are state laws that prohibit sex and age discrimination in the same provision,[11] so the federal courts’ unwillingness to combine the effects of discrimination prohibited by two separate statutes is not always a concern. Given the Harvard Business Review’s exposure of the dire state of workplace age bias against women, and the Tenth Circuit’s groundbreaking decision in Frappied, more women experiencing workplace age discrimination may want to consider challenging their employers’ decisions. Because of the variations in protections in different jurisdictions, employees should consider seeking legal advice. If you or someone you know has experienced sex-plus-age bias, contact the experienced lawyers at Katz Banks Kumin today.

[1] The legal standards, particularly the causation standards, also differ under the two statutes. Under Title VII, it is sufficient to prove that sex was a “motivating factor” in an employment decision. Under the ADEA, however, age must be the but-for cause, Gross v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009). Many courts have interpreted this but-for causation standard to mean that if any other reason—even sex, which is a protected class under Title VII—played a role in the employment decision, then the age claims fail. The Supreme Court recently clarified that “but-for cause” does not mean “sole cause,” Bostock v. Clayton County, 140 S. Ct. 1731 (2020), but the idea has yet to trickle down through the federal courts—and into ADEA claims.

[2] Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1045 (10th Cir. 2020).

[3] Id.

[4] 833 F.2d 1406, 1416-17 (10th Cir. 1987)

[5] Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“Having determined that Gorzynski has provided sufficient evidence of age discrimination to reach a jury, there is no need for us to create an age-plus-sex claim independent from Gorzynski’s viable ADEA claim.”); Schatzman v. Cty. Of Clermont, Ohio, No. 99-4066, 2000 WL 1562819, at *9 (6th Cir. 2000) (“[W]e decline the invitation to decide the ‘sex plus [age]’ charge partly because it is unnecessary for us to do so.”).

[6] 966 F.3d at 1046.

[7] 400 U.S. 542 (1971).

[8] Id. at 1046.

[9] 140 S. Ct. 1731.

[10] Id. at 1047.

[11] See, e.g., D.C. Code Ann. § 2-1401.1.

How The U.S. Supreme Court’s Ruling On College Affirmative Action Programs May Impact Private Employers

The U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College decided that the race-based admissions programs at Harvard College and the University of North Carolina (the “Schools”) violated the Equal Protection Clause of the Fourteenth Amendment. While the Court answered the question for publicly funded schools, it is an open question whether, and how, the Court’s decision will impact affirmative action and diversity programs for private employers, as discussed in more detail below.

Overview

The Fourteenth Amendment states, in relevant part, that no State shall “deny to any person . . . the equal protection of the laws.” Among other things, the clause protects people regardless of their race. A limited exception that permits race-based action by the government is permissible if such action can survive a rigorous standard known as “strict scrutiny.” Under that standard, race-based conduct is permissible only if the government can establish a “compelling government interest” and the race-based action is “narrowly tailored” to achieve that established interest.

The Supreme Court concluded that the Schools’ race-based admissions programs failed strict scrutiny. In support of their race-based admissions programs, the Schools asserted the following educational goals as their compelling interests:

Training future leaders in the public and private sectors/preparing engaged and productive citizens and leaders.
Preparing graduates to adapt to an increasingly pluralistic society/broadening and refining understanding.
Better educating students through diversity/enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes/promoting the robust exchange of ideas.
Producing new knowledge stemming from diverse outlooks/fostering innovating and problem solving.
Preparing engaged and productive citizens and leaders.

The Court noted that although these goals were laudable, they were too amorphous to pass muster under the strict scrutiny standard. The Court recognized that a court would have no way to know whether leaders have been adequately trained; whether the exchange of ideas is sufficiently robust, or whether, and in what quantity, racial diversity leads to the development of new knowledge. In other words, the Court took issue with the fact that the asserted interests could not be measured in any meaningful, quantifiable way.

In addition, the Court found there was no meaningful connection between the Schools’ use of race in the admissions process and the claimed benefits. For example, the Court noted that while diversity may further the asserted interests, the Schools failed to establish that racial diversity would. The Court took particular issue with what it viewed as the overbroad and arbitrary nature of the Schools’ race considerations as they were underinclusive (for example, failing to distinguish between South Asians or East Asians, or define what Hispanic means, or account at all for Middle Eastern applicants). The Court reasoned that the overbroad, arbitrary, and underinclusive racial distinctions employed by the Schools undermine the Schools’ asserted interests—essentially noting that the Schools’ race-based admissions programs sought to “check the diversity box” rather than obtain a truly diverse (racially or otherwise) student body.

In addition to the School’s programs’ failure to survive strict scrutiny, the Court also recognized that the Schools’ race-based admissions processes promoted stereotyping, negatively impacted nonminority applicants, and, contrary to Court precedent, did not have a durational limit or any cognizable way in which to adopt a durational limit.

Supreme Court Precedent

The Court’s decision rested largely on two prior cases addressing race-based admission programs in higher education: Regents Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) and Grutter v. Bollinger, 539 U.S. 306 (2003). As a guiding principle, the Court noted that the Equal Protection Clause of the Fourteenth Amendment bars admissions programs that use race as a stereotype or a negative.

In Bakke, while rejecting other asserted interests, the Court explained that obtaining the educational benefits associated with having a racially diverse student body was “a constitutionally permissible goal for an institution of higher education,” provided that certain guardrails were in place. This is despite the Court’s recognition that racial preferences cause serious problems of justice. The Court said that race only could operate as “a ‘plus’ in a particular applicant’s file” and the weight afforded to race must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.”

In Grutter, the Court decided “student body diversity is a compelling state interest that can justify the use of race in university admissions,” provided that sufficient limitations were in place—notably, that under no circumstances would race-based admissions decisions continue indefinitely. The Court cautioned that, because the use of race was a deviation from the norm of equal treatment, race-based admissions programs must not result in “illegitimate . . . stereotyping,” must not “unduly harm nonminority applicants,” and must be “limited in time.”

The Court’s Additional Considerations

Of critical importance to the Court’s ruling was the fact that neither School’s race-based admissions program had an articulable end point. The Court noted that the Schools’ arguments to overcome the lack of a definite end point were, essentially, “trust us, we’ll know when we’re there.” Yet such arguments, the Court held, were insufficiently persuasive to offset the pernicious nature of racial classifications. Justices Thomas and Gorsuch, who joined the majority opinion, took additional issue with the Schools’ “trust us” arguments in separate concurrences, noting (1) their view of the Schools’ histories of harmful racial discrimination, and (2) that courts are not to defer to the morality of alleged discriminators.

Additionally, the Court took issue with the logical necessity that, in any instance when a limited number of positions are available, a race-based “plus factor” for applicants of a certain race is a negative for applicants who do not belong to the favored race. “How else but ‘negative’ can race be described if, in its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been?” In this, the Court recognized that equal protection is not achieved through the imposition of inequalities.

Impact on Private Employers

The Supreme Court’s recent decisions have no direct legal impact on private employers. The Court based its decision on the Equal Protection Clause of the Fourteenth Amendment, applicable to the Schools under Title VI, which does not intrinsically apply to private companies; it is Title VII and analogous state and local laws that apply to private employers (not Title VI) and prohibit private employers from discriminating against employees and applicants on the basis of race (and other protected characteristics). In employment, the law has always prohibited any consideration of race in decision-making, such as who to hire or who to promote, except in extremely narrow and limited situations but, even then, quotas and set-asides are strictly prohibited.

While not directly applicable, it is highly likely that the Court’s decision will spawn new challenges to private employer diversity and inclusion programs, and the Court’s rationale will be referenced as an indicator of how the Court will view such programs under Title VII. Even before the Court’s decision, the legal landscape around an employer’s use of affirmative action plans to aid in making employment decisions was murky. Generally a private employer’s affirmative action plan is permissible under Title VII in two scenarios: (1) if the plan is needed to remedy an employer’s past discrimination, and (2) if the plan is needed to prevent an employer from being found liable under Title VII’s disparate impact prohibitions (which operate to prohibit facially neutral policies that nevertheless disproportionately disadvantage certain groups).

Regarding the latter scenario, it is unlikely the Court’s ruling will have much if any impact. For an affirmative action plan to survive scrutiny on this basis, an employer must first prove a disparate impact case against itself: it must identify a specific policy, prove that such policy has a disparate impact on a certain group, and either show that the policy is not justified by business necessity or show that there is a viable alternative that both (a) accounts for the employer’s business necessity, and (b) has less of a disparate impact on the affected group. Then, the employer must prove how its affirmative action steps offset the disparate impact. There is nothing in the Court’s opinion that suggests an employer’s effort to remedy an ongoing Title VII violation would itself be a violation of Title VII.

However, there is language in the Court’s opinion that suggests an affirmative action plan implemented in the former scenario could be problematic, especially if it is not designed carefully. Indeed, a number of lower court decisions even before the Supreme Court’s recent ruling have struck down employer affirmative action programs. Permissible affirmative action programs are typically implemented to remedy past racial imbalances in an employer’s workforce overall, and are not tied to past discrimination against an identifiable employee or applicant. At the close of the Supreme Court’s recent opinion, it admonished Justice Sotomayor’s dissent wherein she proposed a world where schools consider race indirectly, through, for example, essays submitted alongside applications. The Court noted that such would nevertheless violate the Constitution, and clarified that admission decisions can rely on the content of application essays, but that such decisions must be based on an individual applicant’s character or experiences, and not based on the applicant’s race. Similarly, Justice Thomas, in his concurring opinion, recognized that “[w]hatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors.” Accordingly, challenges to affirmative action plans that attempt to remedy past discrimination generally, by using race in its decision-making may find purchase in the Court’s closing sentiments and Justice Thomas’s concurrence. Although a standard less exacting then “strict scrutiny” is used to evaluate discrimination claims under Title VII, the sentiment expressed by Members of the Court could make the judiciary increasingly skeptical of affirmative action programs that resemble those used by the Schools. In any event, the possibility of being able to continue to use affirmative action plans in the strict sense to increase diversity in an employer’s workforce is likely little comfort to private employers, as few will want to prove a discrimination case against themselves to justify a diversity program.

Additionally, employers’ diversity, equity, and inclusion (DEI) programs may be the subject of challenges based on the Supreme Court’s skepticism of the benefits of “racial” diversity, as opposed to diversity on less-pernicious characteristics. For example, DEI programs that seek to increase racial diversity based on broad racial definitions may be subject to challenges because of their overbreadth or purportedly arbitrary nature. And DEI programs that highlight racial diversity, rather than, for example, diversity based on socio-economic, ideological, or experiential characteristics may suffer challenges to their legitimacy in reliance on the Supreme Court’s implication that there may be no identifiable tether between “racial” diversity and the purported benefits of diversity as a concept.

Of course, to the extent private employers with affirmative action plans have contracts with government entities and/or receive government funding, affirmative action plans under the Office of Federal Contract Compliance Programs (“OFCCP”), require targeted diversity recruiting efforts, aimed at increasing the diversity of applicant pools, although this also does not permit race (or other protected traits) to be used in decision-making.

Practical Tips For Employers

The Court’s decision applies to affirmative action programs in the college setting and applies an analysis under the Equal Protection Clause that does not directly apply to private employers. The decision also deals with very different scenarios where colleges and universities directly used race as a criteria for admissions. As noted, this has generally never been permitted in the employment context and, as a result, the rules of the road for implementing DEI programs have not changed, although they may evolve through future legal challenges in light of the Supreme Court’s recent decisions. There are still countless ways that private employers can design and implement lawful DEI programs. Below are just a few examples employers may consider:

Reiterate D&I as a priority in meetings, conferences, and other communications.
Implement recruiting programs to diversify your talent pool.
Incentivize employees to refer diverse candidates for openings.
Support employee resource groups, mentoring programs, and leadership training.
Educate your managers and supervisors on unconscious bias.
Encourage diversity in suppliers and business partners.
Tie D&I efforts (not results) to managerial performance evaluations.
Under the privilege of working with counsel, monitor changes in workforce demographics and conduct pay audits.
Consider modifying the goal of DEI programs to seek diversity based on broader characteristics that do not involved protected classes, such as experiences, economic background, or worldview.

Conclusion

The Court’s decision is a landmark ruling that will alter the landscape of college and university admissions. And it will almost certainly spawn new challenges beyond the classroom and into the workplace.

However, the decision does not legally require private employers to make changes to their existing DEI programs if such practices comply with already-existing employment laws. Employers can still implement diversity and inclusion programs and promote diversity within their workplaces but, as has always been the case, employers should tread carefully in designing and implementing these programs. Employers would do well to engage counsel to review such programs and initiatives for possible concerns in light of the Court’s decision, as well as existing precedent in the employment context.

For more Labor and Employment Legal News, click here to visit the National Law Review.

Supreme Court Upholds State Courts’ Power of Judicial Review Over Election Matters

On June 27, 2023, the United States Supreme Court upheld a decision by North Carolina’s highest court holding that the North Carolina legislature went too far in gerrymandering voting district maps. The Court affirmed the authority of state courts to review the decisions of state legislatures on election matters, rejecting the “independent state legislature theory.” The theory, taken to its extreme, is that no branch of state government can question a state legislature’s decision regarding any federal election. The ruling is an encouraging sign for states like Arizona, Illinois, and Michigan, where independent redistricting commissions have created, or are creating, new maps intended to represent non-partisan, or less partisan, boundary drawing and citizen-driven ballot initiatives to protect voters’ rights.

The plaintiffs in Moore v. Harper, 600 U.S. ___ (2023), were groups and individuals challenging North Carolina’s 2021 congressional districting map, which they viewed as unacceptable gerrymandering, created to favor Republican candidates. The legislative defendants asserted that in creating the new map, they had exercised the authority established by the “Elections Clause” in Article I, Section 4 of the United States Constitution that provides that state legislatures shall prescribe, “the Times, Places and Manner of” federal elections. Although North Carolina judges had found the new map to be “a partisan outlier intentionally and carefully designed to maximize Republican advantage in North Carolina’s Congressional delegation,” the legislative defendants argued the map was beyond the reach of judicial review. The Supreme Court had to decide whether “the Elections Clause insulates state legislatures from review by state courts for compliance with state law.” Moore, slip opinion at p 11.

Writing for the majority, Chief Justice John Roberts began the analysis by citing our country’s long-standing legal tradition of judicial review of the constitutionality of legislative acts. The majority opinion noted the 1787 decision in Bayard v Singleton, where the North Carolina Supreme Court found a law banning British loyalists from challenging property seizures was unconstitutional. The opinion goes on to review many decades of decisions where courts have considered the “interplay between state constitutional provisions and a state legislature’s exercise of authority under the Elections Clause.” Moore, slip opinion at p 15.

Looking at the other side of the case, the Court examined the legislative defendants’ arguments about the impact of the Election Clause. Rejecting Justice Clarence Thomas’s dissent, Roberts addressed the concept known as “independent state legislature theory” which contends that, “because the Federal Constitution gives state legislatures the power to regulate congressional elections, only [the Federal] Constitution can restrain the exercise of that power.” Id at 18. The historical references supporting this theory are debunked in the Moore decision, and many commentators have stated the decision in Moore slams the door on the extreme view that state legislative acts around federal elections are not subject to review by state courts.

The Moore decision, however, refers to a need to balance competing interests: “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.” Moore, slip opinion at p 26. The opinion goes on to note:

We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause… We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

Id. p 28-29. It therefore remains to be seen how difficult it will be to challenge state legislatures in their future attempts at partisan district drawing in state courts. Paying homage to the Supreme Court decision in Bush v Gore, it also leaves open the question of when federal courts may find that a state court has transgressed the “ordinary bounds of judicial review.” And, Moore leaves the Court’s holding in Rucho v Common Cause, 139 S Ct 2484 (2019) that partisan gerrymandering claims brought in federal court are not justiciable because they present a political question beyond their reach.

Nevertheless, taken in the context of other decisions reached this term, such as the Alabama districting case implicating the Voting Rights Act (Allen v Milligan), the recent decision in Moore gives comfort to many traditionalists who have been increasingly fearful of sudden and/or extreme changes to norms in American jurisprudence.

Click Here for More Election Law News at the National Law Review.

Biden Administration Revitalizes and Advances the Federal Government’s Commitment to Environmental Justice

On April 21, 2023, the eve of Earth Day, President Biden continued his Administration’s spotlight on environmental justice issues by signing Executive Order 14096, entitled “Revitalizing Our Nation’s Commitment to Environmental Justice for All.”

This Executive Order prioritizes and expands environmental justice concepts first introduced in President Clinton’s 1994 Executive Order 12898. The 1994 Order directed federal agencies to develop environmental justice strategies to address the disproportionately high and adverse human health or environmental effects of federal programs on minority and low-income populations.

One of President Biden’s early actions [covered here], Executive Order 14008, introduced the whole-of-government approach for all executive branch agencies to address climate change, environmental justice, and civil rights. It created the White House Environmental Justice Interagency Council, comprising of 15 federal agencies, including the United States Environmental Protection Agency (“EPA”) and the Department of Justice. Biden’s new Executive Order expands the whole-of-government approach by: (1) adding more agencies to the Environmental Justice Interagency Council and (2) establishing a new White House Office of Environmental Justice within the White House Council on Environmental Quality (“CEQ”). The new Office of Environmental Justice will be led by a Federal Chief Environmental Justice Officer and will coordinate the implementation of environmental justice policies across the federal government.

This new Executive Order emphasizes action over aspiration by directing federal agencies to “address and prevent disproportionate and adverse environmental health and impacts on communities.” It charges federal agencies with assessing their environmental justice efforts and developing, implementing, and periodically updating an environmental justice strategic plan. These new Environmental Justice Strategic Plans and Assessments are to be submitted to the CEQ and made public regularly, including through an Environmental Justice Scorecard, a new government-wide assessment of each federal agency’s efforts to advance environmental justice.

Specifically, defining “environmental justice” is one strategy to make concrete what federal agency efforts will address. Under the Executive Order, “environmental justice” means “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment so that people: (i) are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and (ii) have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.” This definition adds “Tribal affiliation” and “disability” to the protected categories and expands the scope of effects, risks, and hazards to be protected against. The Fact Sheet accompanying the Executive Order explains that the definition’s use of the phrase “disproportionate and adverse” is a simpler, modernized equivalent of the phrase “disproportionately high and adverse” originally used in Executive Order 12898. Whether this change in language from “disproportionately high” to “disproportionate” will affect agency decision-making is something to watch for in the future.

As part of the government-wide mission to achieve environmental justice, the Executive Order explicitly directs each agency to address and prevent the cumulative impacts of pollution and other burdens like climate change, including carrying out environmental reviews under the National Environmental Policy Act (“NEPA”), by:

Analyzing direct, indirect, and cumulative effects of federal actions on communities with environmental justice concerns;
Considering the best available science and information on any disparate health effects (including risks) arising from exposure to pollution and other environmental hazards, such as information related to the race, national origin, socioeconomic status, age, disability, and sex of the individuals exposed; and,
Providing opportunities for early and meaningful involvement in the environmental review process by communities with environmental justice concerns potentially affected by a proposed action, including when establishing or revising agency procedures under NEPA.
The Executive Order also emphasizes transparency by directing agencies to ensure that the public, including members of communities with environmental justice concerns, has adequate access to information on federal activities. These activities include planning, regulatory actions, implementation, permitting, compliance, and enforcement related to human health or the environment when required under the Freedom of Information Act, the Clean Air Act, the Clean Water Act, the Emergency Planning and Community Right-to-Know Act, and any other environmental statutes with public information provisions.

CEQ is expected to issue interim guidance by the end of the year and more long-term guidance by the end of 2024 as to implementing the Executive Order’s directives. It is too early to know whether any directives will go through rulemaking under the Administrative Procedure Act. But with a presidential election looming and ongoing budget negotiations between the White House and Congress that propose modest cuts to NEPA as part of permitting reform, CEQ’s efforts may be limited to guidance for now.

For more environmental legal, news, visit the National Law Review here.

Legal News Reach S3E1: The DEI Dialogue: How Feedback Fosters Inclusion and Diversity in the Workplace

Welcome to Legal News Reach Season 3! We begin the new year with a conversation between the National Law Review’s Social Media Manager, Crissonna Tennison, and Bracewell’s D&I and Community Outreach Director, Monica Parker.

By now, most firms understand that diversity and inclusion are nonnegotiable foundations for a successful organization, but feedback conversations remain a commonly overlooked—or avoided—tool for fostering deeper professional connections amongst colleagues with different backgrounds and experiences. What role does feedback play in successful D&I practice, and how can attorneys approach it?

We’ve included a transcript of the conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for clarity and readability.

Crissonna Tennison

Thank you for tuning in to the Legal News Reach podcast. My name is Crissonna Tennison, Web Publication Specialist and Social Media Manager for the National Law Review. In this episode, I’ll be speaking with Monica Parker, Director of D&I and Community Outreach at Bracewell LLP.

Monica, can you tell me a little bit about your background, what led you to practice law in the first place and eventually to Bracewell?

Monica Parker

Well first of all, thank you for having me. I’m excited to be here to have this chat with you today Crissonna.

As you mentioned, I’m a former practicing attorney. I have spent about two decades in law firms and professional development and, recently, diversity and inclusion. And what made me practice law, I’m not the typical law student. I didn’t go straight from college to law school, I worked for four years. And you know what, I missed school. So I appreciated the intellectual rigor, I would say, of law school, and then I ended up falling in love with Harvard Law’s negotiation program. That’s where I went to school. So I ended up becoming a teaching assistant for the negotiation program while I was there, and then came back as a lecturer in law to teach the course after I graduated.

What led me to Bracewell–I would say here is the plug for the importance of your network. I heard about this position through someone that I knew when I was a summer associate many years ago at a law firm. This person was then working in professional development for that firm. She’s now the Chief Talent Officer at Bracewell. So that’s how I heard about the opportunity. I will say that when I interviewed I had conversations with the firm’s Managing Partner, as well as the chair of the D&I Committee, the firm’s General Counsel, the hiring partners, and others, and really just appreciated the genuine, authentic nature of the leadership. They were candid with me about what’s working, what the challenges are, and it was an opportunity to have an impact and work with some good folks to that timeline at Bracewell.

Crissonna Tennison

It’s always great when your workplace is transparent with what’s going on and shows that they’re willing to have ongoing conversations. What brought you more specifically into the diversity and inclusion world and practice?

Monica Parker

I would say, like many folks who work in this arena, I was motivated by my own experiences of being a woman of color in this profession. At this stage of the game, I have a wealth of experience. And I’ve been fortunate in my career, and I saw this as an opportunity to help lift others up. Plus, I really wanted to have the opportunity to have an impact. And there’s lots of space to have impact in the world of diversity and inclusion these days.

Crissonna Tennison

Definitely. Broadly speaking, what would you say some of the hurdles are to ensuring diversity specifically in the legal business and legal field?

Monica Parker

There are three major challenges among others, right? There are several, but I would say pipeline is one, recruiting is another, and then retention is a third.

So when I think about the pipeline piece, not everyone has the same opportunities, right? They can’t all necessarily go to the best schools, they may not have family members or family friends who sit around the dinner table talking about the practice of law, they may not have opportunities with college applications or law school applications. So that’s one hurdle, right? And if you do make it over that hurdle, and you graduate from law school, then not everyone is going to come to a large law firm. So this is actually a very competitive market that we’re operating in to begin with. And then once you get there, for underrepresented groups, you have to make sure that they’re getting the same kinds of opportunities as everyone else. So for example, you need there to be a lot of candid feedback conversations, people need mentors and sponsors. But often people tend to connect with those who are like them. So those are some of the challenges specifically for the legal industry, it can be kind of difficult to feel comfortable enough with people to have the kind of conversations you’re talking about. So if you have people that look like you that makes all the difference in the world.

Crissonna Tennison

So when it comes to diversity and inclusion, what are some general patterns that you’ve noticed that have been productive, and some patterns that are not quite so productive at this time that you’re hoping might change?

Monica Parker

So let me talk about the not so productive patterns, right? So in the world of D&I, you sometimes can see what I call “check-the-box” exercises. So, for example, if everyone jumps onto the training bandwagon, training in and of itself doesn’t have the greatest return on investment. Here’s what you can do to be more productive: you can pair that with coaching, you can choose a particular area. So let’s say you want to do unconscious bias training when it comes to hiring practices, then you can do the training with folks who are involved. And you can provide coaching for those folks as they’re going through the hiring process. And then you can notice what’s working, what’s not working, continue to develop it and iterate it. And I think that’s how you shift from a not so productive practice or pattern to something that is more productive.

I think just telling people that you need them to do something, but then not giving them any tools to do it, is probably not the best approach. So for example, I mentioned feedback. We know it’s good. We know it’s important, but if people aren’t doing it, especially if you notice they’re not providing feedback to folks of color, you want to dig into that and you want to understand why and then offer some specific support around that.

Crissonna Tennison

I can see how that’s definitely something that comes up a lot. Leaning more into the feedback piece, that’s something that you speak a lot about. When it comes to feedback, these conversations obviously are not fun for most parties involved. Can you talk more about how you can navigate those conversations in a positive way, and what some of the benefits are of doing so?

Monica Parker

Sure. As you said, having feedback conversations can be difficult. And I can say this because I’m a lawyer, lawyers are often conflict averse. And so what happens is, you need to give this feedback, you know you do, you don’t want to give feedback because you’re worried about how the other person’s going to respond to it. So then you don’t do it, the behavior continues or gets worse. And you need to have this conversation. It ends up being this vicious cycle. Also, as we’ve talked about, if people tend to work with those that they like, or who look like them, then they tend to be more comfortable giving feedback to those folks as well. And let me just point out also, everyone’s very busy. And it can feel like giving feedback is one of those things that can take so much time. And “you know what, maybe it’s just better if I do it myself.”

Well, the challenge there is that if you’re not giving that feedback, then you’re not giving the person the opportunity to grow and to develop. And that’s the benefit of giving feedback. And then also as a way of showing your commitment to your employees too, if you’ve spent the time and the money to invest in them joining your firm, then you want to make sure you’re giving them the feedback that they need in order to be able to succeed there.

And I think that sometimes we think it’s going to take a lot of time to give that feedback. But it actually can take less time than you think. If you think about what you want to share, provide specific examples. Give the person the opportunity to ask questions, and then see how they do.

Crissonna Tennison

Unfortunately, I relate to the putting off things part. And what’s interesting about that is when you notice something that requires feedback early on, that conversation, it would seem, would tend to go a bit better than if you let it go on for a while and now you’ve built up resentment and the problem’s bigger. I can see how maybe creating a framework for doing it in a positive way might decrease the dread that might make you put it off. I can see how that can be really important.

Can you talk about some actionable tips that managers can take to provide feedback, maybe more routinely and in a more comfortable way?

Monica Parker

The first thing to do is to think about how you want to frame the conversation, especially if it’s making you nervous that you have to give this feedback and you’re worried about how the other person’s going to respond. So even a simple line, something you can remember and say easily, “I care about you and want you to do well here,” and then provide the feedback, it demonstrates to the other person, “This is about helping you grow and develop, and that’s important to me.” And I think that’s often what people want to hear when they’re on the receiving end of that feedback.

The second thing you want to do is share specific examples rather than talking in general terms. I can remember when I was a junior associate at a law firm and I received back work covered in red lines, you know, it looked like it was written in blood, just a marked up memo of my work. And the partner had put a handwritten note at the top of the memo that said, “Do better.” Who? What? What does “do better” mean? Some specificity would help. Now in my case, what I did is I went and talked with a more senior associate, to get a sense of what needed to be done to improve the memo. But being specific with your feedback is very helpful.

And then…it’s time to let the feedback sandwich go. Okay! The feedback sandwich is where you say something good, then you give them some other critical feedback, and then you say something good. The reason why it’s time to let it go is because everybody knows it’s coming. People are very savvy now. So they can tell when there’s a feedback sandwich in the works. And they can never actually hear the good stuff you’re saying because they’re waiting for that other shoe to drop where you tell them what’s not working. So why not just offer the critical feedback upfront? That’s one option. Another option is to ask the recipient, “What do you want to hear? Do you want to hear the feedback about what I want us to improve on first and then tell you what’s going well? Or the opposite?” You can ask!

Crissonna Tennison

Right as you said “it’s time to let go the feedback sandwich go” I was going to ask whether we should do the feedback sandwich, because I feel like if I received that paper that said “do better” with just a bunch of red marks I would shut down, at least at first. So yeah, there’s definitely room for being kind in the way that you do it.

Out of curiosity, when it comes to offering feedback, is it helpful if you’ve already developed some kind of a positive relationship with the person you’re giving feedback to? Can you speak to that a little bit?

Monica Parker

I think that’s a really good question. I think that to the extent there’s rapport and trust has been developed in relationship, it does make it easier to give that feedback because the recipient already knows that you care about them and knows that you want them to do well, and also hopefully feels comfortable asking more questions or sharing their perspective about whatever the situation is. With that being said, that can’t always be the case, right? If you’re just starting at an organization, if you’re a new person, building that rapport is going to take some time. Interestingly enough, I think if you were to give candid feedback, if you were to provide examples, if you were to do that in a timely fashion that would actually help you to build that trust and rapport, that will suit you further in the relationship as you go forward.

Crissonna Tennison

If you’re an employee, what should you be looking out for in terms of indicating that you’re not getting the level of feedback that you should be getting or that you deserve to get?

Monica Parker

If all you’re hearing is you’re doing fine, you want to dig deeper. It could be true that you’re doing fine. But it also may not be true that you’re doing fine. It could be that you’re working with someone who has difficulty sharing critical feedback or who’s very busy. And in that case, you’re going to want to dig a bit. Also, if you find yourself in your annual review, and you’re surprised by some critical feedback that you get, that’s an example that you haven’t been getting the feedback that you need, because what you hear in your annual review should never be a surprise, in terms of offering feedback. And it’s something that you want to offer regularly.

Crissonna Tennison

Would it be helpful for people to establish more frequent check-ins instead of the once a year, big one?

Monica Parker

It’s definitely helpful to establish regular check-ins. In some of my previous roles, I’ve had the opportunity to have a weekly or every other week check-in with the folks that I was supervising. And those are fantastic opportunities, not only for me to give feedback, but also for me to receive feedback. And again, that’s another way to build that relationship of trust and rapport. But if you’re doing this on a regular basis, even if it’s just a quick check, and a quick coaching session, you can catch a lot of things early and repair those things early as opposed to waiting until the annual review. By the time you get to the annual review, it’s actually too late. At that point, it really should just be a review of the year and then looking forward. So it’s very important to establish those regular check-ins again, even if they’re very short, for sure.

Crissonna Tennison

So I’m an employee, and I’m finding that I’m not getting the feedback that I think I deserve. What are some tips you have for an associate to proactively ask for that feedback if their supervisor hasn’t reached out recently, or may be dropping the ball in that area?

Monica Parker

I think a common mistake that people make is they just say “I’d appreciate any feedback.” And you may not get it when you ask that question. I think you want to be more specific than that. You could say something like, “Well, how would you have handled this?” Or “What would your approach with the client have been?” in case of an associate talking to the partner, or “I noticed you changed this point here? Will you tell me more about that?” Because when you’re asking very specific questions, you’re much more likely to engage the person in the conversation. And I think also sometimes being on the receiving end of critical feedback is hard for a lot of us, myself included. And so then you want to be prepared to take in what you hear. I often suggest that people take notes, because sometimes it can be hard to hear and taking notes can help you digest a bit better. And then also go find someone to process it with, someone who can help you understand the feedback that you received, you know, help you stay on an even keel. So those are some of the things that I would recommend.

Crissonna Tennison

That is really helpful advice. I can see how asking, “Oh, how would you have done that?” or “What was your thought process behind that?” makes it less about you, which makes it easier for everyone involved.

What can leaders do to ensure that people of color and other minoritized people feel comfortable being open about their experiences and evolving needs? I think you already spoke to this a little bit when it comes to building rapport, but is there anything else that you think would help?

Monica Parker

For sure, I think providing opportunities for underrepresented groups to share their perspective is really important. But then you have to take it a step beyond that. You have to be sure to look for ways to act upon what it is that you hear. And then there’s a step beyond that, where you then have to communicate that you’ve done so. So as an example, when I joined Bracewell, I did a listening tour. So I talked with over 100 attorneys about their experiences with diversity and inclusion at the firm. And then I had the opportunity to go to the partner retreat to present my findings as well as to make recommendations. And then from there, the D&I committee has spent its energy and time implementing those recommendations. So it’s really important, if you’re going to if you’re going to ask people to share about their experiences, you want to make sure that you’re demonstrating that you heard it, you’re trying to make an effort to do something with that feedback, and you’re making sure that they know that that’s what you’ve done.

Crissonna Tennison

Yeah, I can see that being helpful because it is a bit of emotional labor, sharing your feedback as a person of color or someone with a different experience, especially in a professional context. That can be a bit challenging, and it’s helpful to know that the other parties involved are also doing their part.

You talked a little bit about it, but what does a day in the life of a D&I consultant or leader look like? I’ve always been curious about that.

Monica Parker

I can tell you first, it’s always a mix, always. So for example, I could be talking with firm leadership about a strategic diversity initiative, I could be immersed in programming, I mentioned the feedback workshops. That’s something that I’ve designed and then delivered to the partners of the firm. There can be times where I’m meeting one-on-one with a partner or an associate to talk about an issue. Also Bracewell likes to collaborate with clients on diversity initiatives. So for example, we partnered with a client through our mutual summer programs where our summer associates of color got to meet with the clients of color, and then the General Counsel and members of the legal team for that client had lunch with all those folks and they got to talk about diversity and inclusion in that legal industry. So it’s always a fun mix of activities, it means that there’s never a dull day.

Crissonna Tennison

No, I can imagine there would not be a dull day in that area. So shifting a little bit, you mentioned that you used to work as an Associate Executive Director for a Seattle-based education nonprofit. Would you be interested in talking a little bit more about that and how it informs your current practice?

Monica Parker

Sure. At the education nonprofit we worked with students of color who are often the first in their families to go to college. So I got to see pipeline issues firsthand. Our students were rising fifth graders, and we worked with them all the way through college. And what I learned more than anything else is the importance of starting early, and then also looking for opportunities to continue to support the pipeline. But I think one of the major lessons was thinking about what it’s like to be the first. So not everyone has a parent or a family friend, or connections, right? Folks who went to law school or practice at large law firms or work for large corporations. Not everyone has that. They have a very different experience coming into a law firm, and that can be all new for an associate. And so it’s both recognizing the challenges for folks as you think about the pipeline issues, then it’s also about thinking about the challenges once that person enters a law firm. So that very much informs the work that I currently do.

Crissonna Tennison

It’s so easy to fall through the cracks. Do you have any D&I initiatives at Bracewell that you’re particularly proud of, or that have been particularly effective?

Monica Parker

I mentioned one of them, so let me dive a little bit deeper into it. I have a background in training folks on how to navigate difficult conversations, this came out of my work at Harvard Law School. And so I developed an interactive workshop on how to give feedback for the partners of the firm. And so what I’m doing in the workshops is I’m sharing a framework for how to have these conversations that allows you to prepare for them and hopefully navigate them with a little less anxiety and with more ease. And then we also talk about differences in feedback, that concept of how it can be easier to give feedback to someone who is like you or looks like you. And when there’s differences in feedback that can create some challenges.

So let’s say, for example, that a white male partner is wanting to give feedback to a woman of color associate. He might be worried that what he says can be perceived as sexist or racist, in which case he’s not going to share that feedback, he’s gonna say you’re doing just fine. So we talked about how differences in feedback can impact the relationship and the associate’s ability to grow and develop at the firm. And I think of the workshops too as a luxury for partners to have a dedicated span of time where they can just talk about delivering feedback and what’s challenging about it, and how to improve upon it. And also to hear about the experiences of their colleagues and know that they’re not the only ones navigating this and that it can be very difficult.

One of the things that’s funny to me about doing workshops, I’ve done training for lawyers, and of course, being a lawyer, I know what lawyers are like, and I know what we think about training. So one of my favorite comments was after a workshop when a partner came up to me and said, “I was skeptical. But this was good.” It’s a tough crowd! It’s a tough crowd.

I would also say that one of the things I’ve loved is that after the workshops, partners will request individual coaching. I remember one partner coming up to me right after the workshop and saying, “I’ve got a feedback conversation coming up with an associate and I’m worried about how the associate’s going to respond.” So we did some coaching on how to frame the conversation with specific examples on what to do with your own strong emotions that you might be experiencing as you’re giving the feedback. So the partner had that conversation with an associate and came back and told me that it went well and that the training was time well spent. That is high praise.

Crissonna Tennison

Honestly, I feel like if you can master the feedback conversation, especially in this kind of a high stakes environment, that has to be transferable to life. I feel like your communication skills would be through the roof. I would love to attend a workshop.

Monica Parker

You’re right. What I tell participants is, it will absolutely help you at work in terms of feedback with associates, it will help you in your work with clients, in your relationships with your colleagues; in general, it can help you at home as well with your significant other. The only folks that this material does not work on would be toddlers. They are quite skilled at difficult conversations and negotiation. I have lost every single negotiation that I’ve had with my nephew starting when he was a toddler and now his toddler sister. So forget it. It won’t work on toddlers but everyone else yeah, okay,

Crissonna Tennison

Well, we’ll just have the toddlers tell us how to communicate. They’re very clear with their needs.

So you wrote a book that was published by the American Bar Association, it’s called “What It Takes: How Women of Color Can Thrive Within the Practice of Law.” Can you talk a little bit more about what motivated you specifically to write that book and what you think readers might get from it?

Monica Parker

At the time, there was a study that the ABA had published called “Visible Invisibility,” and it was about how women of color tend to slip through the cracks at large law firms. There have been studies done on women, done on people of color, but women of color just weren’t in the mix. And so this particular report focused on women of color at large law firms, and I will say what I read was sobering, but absolutely necessary. And what I started thinking was, this was needed. I wonder if it’s possible to do a follow-up where we talk with women of color partners at large law firms who are doing well and see what we can learn from them. So I had a chance to conduct interviews with women of color partners across the country, which was wonderful. So we got a wide range of perspectives on what was working for them, what was challenging, and then lots of tips and tricks on how to be successful at large law firms. So it’s a fantastic read for associates, of course, but it’s also a great read for law firms as well.

Crissonna Tennison

Do you think it would be helpful to read even if you’re not a woman of color?

Monica Parker

Absolutely, it is. It’s useful for anyone to get perspective on what it’s like to be a woman of color. And interestingly enough, and probably not a surprise, but a lot of the advice offered there is valuable for anyone in any role, essentially. So yes, it’s a great read. If I do say so myself.

Crissonna Tennison

Oh, no, I love it. I believe you. And it’s good to advocate for yourself. So I will probably read it.

Can you talk a little bit more about what you feel the stakes are when it comes to developing diversity and inclusion practices in law? Like what do you feel like the larger stakes are?

Monica Parker

Well this one may be obvious, but it bears repeating: clients are wanting to see diversity in their legal teams. It’s going to vary from client to client. But we have seen this trend where it’s becoming increasingly important, and there are clients who absolutely demand diversity in their legal teams. And that’s something that’s not going to go away. So that’s a major stake. I would say also, firms, again no surprise, have invested a lot in their people. And so if you invested that much in your people, you want to retain your people, and you want them to succeed, and you want them to be fulfilled. Turnover is expensive.

I’d also say that you want to have a reputation for attracting diverse talent. And candidates for firms are asking about that. That’s something that I’ve noticed that’s also becoming increasingly the case, and not just candidates of color, but white candidates as well, because they want to work at a place that values diversity, equity, inclusion, and belonging. So if you want to attract the best talent, you want DEI to be top of mind.

Crissonna Tennison

I feel like I’ve been hearing that lately, that diversity issues are, in addition to all the other reasons why they’re so important, they’re also important when it comes to just the business elements of running a firm. Do you see any possible trickle down effects of diversity and inclusion in law affecting people in the broader world, like clients or just people who need legal services? Is that something that you think is relevant?

Monica Parker

It’s relevant, because as humans, we all want to see people who look like us. So if I’m a client of a law firm, I would like to see people who look like me working at that law firm, doing well at that law firm, whether it’s a client at a large law firm, you know, a medium sized firm, a small firm. That’s important too just because lawyers often are very involved in their communities as well. It’s important to see the representation match up with the community. So I do think it’s important for that to be there.

There are some of the standard arguments you may have already heard around how diverse teams perform better, have better results overall. So I think that just by nature of having that diversity, you bring a diversity of experiences to the table, and that’s at the end of the day going to be all to the good.

Crissonna Tennison

Do you have any final thoughts or messages to share for listeners or anything that you feel we should have asked or touched on that we didn’t?

Monica Parker

One final point: diversity, equity and inclusion is a team effort. So it’s not up to your DEI person or leadership to make things happen, although those are necessary, folks. I look at it as, D&I requires every person in the organization to be focused on making the workplace an inclusive space where everyone can achieve.

Crissonna Tennison

Yeah, I can see how in an office environment you have to work together to create an effective workplace. And that includes working together to build a more accessible, inclusive workplace where everyone feels comfortable to do their best work.

Thank you so much for coming on through and talking to us today. That was a lot of really interesting and good information. So yeah, thank you for coming and joining our show today and sharing your insights with us.

Monica Parker

Well, thanks again for having me. I enjoyed our conversation.

OUTRO

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Women in Whistleblowing: The Intersection Between Women’s Rights and Federal Employee Whistleblower Protections

Introduction

Pew Research Center data found that 42% of women in the United States have suffered discrimination in the workplace on the basis of their gender. Although there are statutory frameworks in place prohibiting such discrimination, the threat of retaliation can make it exceedingly difficult for employees who are already experiencing discrimination and harassment to come forward as whistleblowers under these provisions. On top of the personal and professional risks inherent in whistleblowing, federal employee whistleblowers have been saddled with added burdens by the statutory framework: in addition to proving her substantive claims, a federal whistleblower of sex discrimination is required to demonstrate that she has exhausted certain administrative remedies before she can be heard by a jury of her peers. Because workplace discrimination disproportionally affects women, ensuring expansive and effective whistleblower protections and remedies, particularly for women in federal employment, is undoubtedly a women’s rights issue. To celebrate Women’s History Month, this article highlights just a few of the remarkable women who have come forward as whistleblowers within this framework to make enormous strides in preserving, enforcing, and expanding crucial protections for future generations of women in the federal workplace.

Statutory Framework

Title VII of the Civil Rights Act of 1964 (“CRA”) prohibits discrimination by private employers based on race, color, religion, sex, or national origin, and further prohibits retaliation by forbidding discrimination against an employee who has “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. In 1972, the Equal Opportunity Act (“EOA”) expanded Title VII’s coverage to include certain categories of federal employees, providing that all personnel actions taken in regard to these employees “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” Many courts have interpreted the EOA to extend both the anti-discrimination and anti-retaliation provisions of the CRA to federal employees. However, in a report on whistleblowing conducted by Senator Patrick Leahy in 1978, it was noted that although some interpretations of the existing statutory framework had been generous to whistleblowers, many courts were still “reluctant to play a role in the whistleblower problem”

Thus, the Civil Service Reform Act (“CSRA”) was passed in an attempt to cement protections for federal whistleblowers, creating an office within the Merit Protections Board (“MSPB”) to bring retaliation claims on behalf of whistleblowers. However, by 1989 not a single corrective action had been brought on behalf of whistleblowers to the MSPB, which was seen as largely ineffectual. In 1989, the Whistleblower Protection Act was passed, which for the first time created an individual right of action for federal employee whistleblowers. As the law currently stands, a federal employee whistleblower may bring a discrimination claim that would have been appealable to the MSPB as a civil action in federal court after the relevant administrative agency has failed to take action for a certain amount of time.

While this statutory framework provides critical tools for female whistleblowers to come forward and expose sex discrimination in the workplace, the accessibility of these tools remains particularly limited for federal employees who are required to go through the MSPB’s arduous administrative procedures before being heard in federal court, all the while often suffering continued discrimination and harassment at work. Thus, the real thrust of the work to protect female whistleblowers has been accomplished not by the provisions of the law but by those individual women brave enough to come forward and fight extensive legal battles to enforce, cement, and expand those provisions.

The Right to a Jury Trial for Federal Whistleblowers

Among the shortcomings of the statutory framework seeking to protect whistleblowers of sex discrimination in the federal workplace is an ambiguity in the scope of the individual right of action. The text of the statute explicitly gives the district court jurisdiction over discrimination claims arising under, inter alia, the Civil Rights Act. Therefore, it remains unclear whether a “mixed case”– which includes both discrimination claims and related non-discrimination retaliation claims – must remain within agency jurisdiction, or whether the entire mixed case, including the whistleblower retaliation claims, can be heard by a federal jury. This crucial gap in the legislation has been directly remedied by individual female whistleblowers.

In 1999, Dr. Duane Bonds was serving as Deputy Chief of the Sickle Cell Disease Branch of the Division of Blood Diseases and Resources within the NIH, where she was a highly prominent medical researcher. Throughout her employment, Dr. Bonds experienced repeated sexual harassment at the hands of her male supervisor. In retaliation for reporting the harassment to the EEOC, Dr. Bonds was removed from her position and demoted. In her new position, Dr. Bonds discovered that human DNA had been improperly used in NIH projects. She escalated these concerns over the objections of her supervisor, who retaliated by submitting negative performance reviews which caused her removal from the project. Dr. Bonds again filed a complaint with the EEOC in 2005, alleging that the removal constituted unlawful discrimination and retaliation. Throughout the complaint and investigation process, Dr. Bonds experienced continued sex discrimination and harassment in her workplace and was ultimately terminated in 2006. Dr. Bonds initiated a final EEOC complaint in 2007, detailing the extensive discrimination and whistleblower retaliation she had experienced. With no administrative action taken within the statutorily determined time frame, Bonds filed her case with the District Court.

Because it included both discrimination and claims of retaliation for protected whistleblowing activity, Bonds’ case was considered a “mixed case,” and the district court struggled with the question of jurisdiction under the CSRA, ultimately dismissing the claims citing failure to exhaust administrative remedies. In her appeal to the 4th Circuit, Dr. Bonds argued that mixed cases like hers must be treated as a single unit and heard in combination in either an administrative proceeding or in federal court. The 4th Circuit agreed, granting Bonds and other whistleblowers in her situation the right to a federal jury trial, on both her CSRA discrimination and WPA retaliation claims.

In determining this jurisdictional question, the 4th Circuit cited to a D.C. Circuit case which held in favor of another female whistleblower bringing both discrimination and retaliation claims. In this case, Kiki Ikossi – an electrical engineer at the Navy Research Lab – suffered continuous discrimination by her employer on the basis of age, gender, and national origin, stunting her career progression. Dr. Ikossi fought the misconduct in federal court, where the D.C. Circuit found that interpreting the law to require a whistleblower’s retaliation claims to be held up in administrative proceedings would be adverse to Congress’ intent to have discrimination and retaliation claims settled “expeditiously.” The Court noted that the regulatory structure surrounding mixed cases had become “extremely complicated,” and that access to a judicial forum for complainants of sexual discrimination in the federal workplace was critical to the legislative purpose, otherwise such claims would “languish undecided in the administrative machinery.”

The decisions on mixed case jurisdiction secured by Dr. Ikossi and Dr. Bonds have been cited by numerous other circuit courts, further expanding protections for federal employee whistleblowers facing sex discrimination in the workplace. On the basis of this precedent, Bunny Greenhouse – a high ranking official at the Army Corps of Engineers who discovered and exposed egregious contracting fraud by the Department of Defense – was able to take her case of whistleblower retaliation to federal court in the District of Columbia. Under pressure of a federal trial, the Army agreed to settle the case for nearly $1 million in restitution. After the settlement, Ms. Greenhouse made an impassioned statement: “I hope that the plight I suffered prompts the Administration and Congress to move dedicated civil servants from second-class citizenry and to finally give federal employees the legal rights that they need to protect the public trust.”

Among many other female whistleblowers who have helped to shape the law as it stands today, Dr. Ikossi, Dr. Bonds, and Ms. Greenhouse’s lengthy legal battles paved the way for future whistleblowers of gender discrimination to have their claims heard by a federal jury of peers rather than a politically appointed federal agency. The whistleblowing community is indebted to these women who were willing to take significant personal, professional, and financial risks to expose sex discrimination in the workplace, and to ensure future whistleblowers remain protected.

For more White Collar Crime and Consumer Rights Legal News, click here to visit the National Law Review

Congress Eases Criminal Offense Restrictions for Employment With Financial Institutions

Included in the defense spending bill signed by President Biden in December 2022 is a section with key provisions for financial institutions that will ease restrictions on hiring candidates with criminal records. Section 5705 in the National Defense Authorization Act (NDAA) for Fiscal Year 2023, titled “Fair Hiring in Banking,” further narrows convictions that would constitute a bar to employment under Section 19 of the Federal Deposit Insurance Act (FDIA) absent a written waiver by the Federal Deposit Insurance Corporation (FDIC). A representative for the FDIC confirmed that the changes are effective now and will be implemented by the FDIC in 2023.

Background

Section 19 generally prohibits any person who has been convicted of a crime of “dishonesty or a breach of trust or money laundering or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense” from working in banking without first obtaining written consent from the FDIC.

Section 19 requires financial institutions to conduct criminal background checks on job candidates, regardless of whether state or local laws limit consideration of criminal histories in hiring. In July 2020, the FDIC issued a final rule that loosened the prohibitions in Section 19 by, among other things, expanding what are considered “de minimis” offenses and expanding the definition of “expungement” to include an order to seal a criminal record or a record relating to a pretrial diversion program.

Older Offenses

The Fair Hiring in Banking provisions go even further, providing that a waiver is not needed if it has been seven years or more since the offense occurred or if the individual was incarcerated with respect to the offense and it has been five years or more since the individual was released from incarceration. The need for a waiver also does not apply to conduct that an individual committed before the age of 21 and if it has been at least thirty months since the sentencing.

De Minimis Offenses

The provisions further permit the FDIC to exempt other “de minimis offenses” that they may determine by rule. Those rules must include a requirement that the offense “was punishable by a term of three years or less.” Applicable de minimis offenses may include offenses for writing bad checks so long as the aggregate value of all the bad checks is $2,000 or less. The FDIC may further designate other “lesser offenses” to be exempt if one year or more has passed since conviction, “including the use of a fake ID, shoplifting, trespass, fare evasion, driving with an expired license or tag, and such other low-risk offenses.”

Consent Applications

According to the provision, when reviewing an application to allow an individual with an applicable criminal conviction to work for a bank, the FDIC must make an “an individualized assessment.” This assessment must take “into account evidence of rehabilitation, the applicant’s age at the time of the conviction or program entry, the time that has elapsed since conviction or program entry, and the relationship of individual’s offense to the responsibilities of the applicable position.” They must further consider the individual’s employment history, letters of recommendation, and the completion of any substance abuse or job preparation programs.

Key Takeaways

The Fair Hiring in Banking provisions clear some barriers for financial institutions to hire individuals who may have committed criminal offenses in the past but have since been rehabilitated, providing needed flexibility in hiring and recruitment. Further, the provisions go beyond the 2020 FDIC rule changes by amending Section 19 of the FDIA to create exceptions to hire individuals convicted of certain criminal offenses without burdensome consent review by the FDIC.

While the federal laws preempt conflicting state and local laws, the Fair Hiring in Banking provisions are in line with the growing number of jurisdictions across the country that have prohibited or limited consideration of job candidates’ criminal histories in the hiring process. Those measures, such as so-called ban-the-box laws, have been imposed in part to promote rehabilitation and concerns that considering criminal histories in hiring disproportionately affects individuals in protected classes.

For more Employment Law News, click here to visit the National Law Review.

Environmental Justice Update: EPA Announces $100 Million in EJ Grants to Local Groups and Issues Guidance Outlining Potential Federal ‘Cumulative Impact’ Claims

“Environmental justice” (EJ) continues as the primary leitmotif of Biden Administration environmental policy in the first weeks of 2023.

Below, we unpack two recently announced EJ efforts: a grant program for groups in environmentally overburdened communities and guidance on legal resources to address “cumulative impacts” issued by the US Environmental Protection Agency’s (EPA) Office of Legal Counsel and outline what these mean for the regulated community taken together in the context of other recent EJ developments.

EPA Announces $100 Million in Grants to Community Groups

This week, EPA announced the availability of approximately $100 million in grants for projects that “advance EJ in underserved and overburdened communities.” The grant programs are part of funding allocated by the Inflation Reduction Act programs discussed here.

Summaries of the two programs:

The Environmental Justice Collaborative Problem-Solving Program (EJCPS) Cooperative Agreement Program. The EJCPS program provides $30 million in funding directly to community-based non-profit organizations for projects focused on addressing local environmental or public health issues in their communities. Five million of the funding is reserved for small community-based nonprofit organizations with five or fewer full-time employees. EPA anticipates funding approximately 50 awards of $500,000 and 30 awards of $150,000.
Environmental Justice Government-to-Government (EJG2G) Program. EJG2G will provide an estimated $70 million in funding for state, tribal, and local projects completed in conjunction with community-based organizations. In total the agency anticipates funding approximately 70 projects of up to $1 million each for a 3-year project.

Interested applicants must submit proposal packages on or before April 10, 2023, for projects to begin on October 1, 2023.

EPA’s efforts to fund local groups are part of its broader strategic goal of enhancing equitable apportionment of resources and the benefits of environmental policies. EPA’s Equity Action Plan, discussed here, prioritizes building capacity in environmentally underserved communities to lead projects. Projects like these would lead to increased community engagement, which in turn could lead to more equitable outcomes in the environmental space. The strategy of building up local capacity to engage on environmental issues, mirrors private-sector efforts like Bloomberg Philanthropies $85 million “Beyond Petrochemicals” campaign, discussed here.

Federal Cumulative Impact Guidance

EPA’s Office of General Counsel released its Cumulative Impacts Addendum this week. This addendum builds on EPA’s Legal Tools to Advance Environmental Justice, which was released in May 2022. Taken together, these encyclopedia-like documents were created with the purpose of “identifying and making appropriate use of every authority and tool available to EPA under the law to incorporate environmental and climate justice considerations in our work,” in the words of EPA Administrator Michael Regan. The addendum itself indicates that it “is not intended to prescribe when and how [EPA] should undertake specific actions, nor does it provide methodologies for how to conduct a cumulative impacts assessment.” (Note: EPA’s Office of Research and Development has advanced a definition of “cumulative impacts,” summarized here, and is researching methodologies to deploy the concept.)

Structurally, the addendum breaks EPA’s authorities to address cumulative impacts into six subject-matter focused chapters:

Clean Air Act Programs
Water Programs
Waste Management and Emergency Response Programs (i.e. Resource Conservation and Recovery Act; Oil Pollution Act; the Emergency Planning and Community Right-to-Know Act; and the Comprehensive Environmental Response, Compensation, and Liability Act)
Pesticides and Toxics Programs (i.e. Federal Insecticide, Fungicide, and Rodenticide Act; the Federal Food, Drug, and Cosmetic Act; and the Toxic Substances Control Act); and
Environmental Review Programs (i.e. National Environmental Policy Act and Clean Air Act Section 309 Reviews).

EPA’s intent with the addendum was to outline legal resources for federal, state, and local regulators to consult situationally outlining potential tools that could be used to address cumulative impacts. These legal tools, used in conjunction with EJ-focused screening tools like EJSCREEN (discussed here) and newly developed and (increasingly available) data (see our discussions here and here), are part of EPA’s high prioritization of EJ issues.

Takeaways for the Regulated Community

We offer two takeaways from these developments:

First, EPA’s commitment to a “whole of government” approach to address EJ issues continues unabated. Over time, the Biden Administration has exhibited a willingness to allocate money to address EJ issues; reorient EPA and DOJ to better address them; develop new tools; and indeed, build capacity to engage local communities in an effort to benefit more Americans regardless of their race, language or socioeconomic status.

Second, taken collectively, these efforts will necessitate changes in process for regulated entities because governmental and community engagement in the EJ space is altering the policymaking process at a rapid rate. Relevant here, we expect that a secondary effect of EPA and private parties “building capacity” in local communities will be an increase in community involvement — and potentially opposition — to businesses operating in their communities. These groups are likely to deploy all available resources — including those outlined in the addendum — to address their concerns.

For more Environmental Policy Legal News, click here to visit the National Law Review.

Top Legal News of 2022: A Review of the Most Notable and Newsworthy Thought Leadership from the National Law Review’s Contributors

Happy New Year from the National Law Review! We hope that the holiday season has been restful and rejuvenating for you and your family. Here at the NLR, we are wrapping up the second season of our legal news podcast, Legal News Reach. Check out episode seven here: Creating A Diverse, Equitable and Inclusive Work Environment with Stacey Sublett Halliday of Beveridge & Diamond! A few weeks ago, we also announced the winners of our 2022 Go-To Thought Leadership Awards! Each year, around 75 recipients are selected for their timely and high-quality contributions to the National Law Review. This year’s slate of winners was particularly competitive – to see the full list, check out our 2022 National Law Review Thought Leadership Awards page.

As we look forward to a bright and busy 2023 for the legal industry, it is more prudent than ever to review the previous year and all that came with it. 2022 was a chaotic and monumental year for not only the legal profession, but for the world at large. The invasion of Ukraine, global supply chain issues, and the ongoing coronavirus pandemic were only some of the many challenges all industries and sectors faced. In the United States, companies and employers dealt with enormous changes at every level, including but not limited to the reversal of Roe v. Wade, shifting attitudes toward cannabis legalization, and ever-changing standards for COVID-19 vaccinations.

Read on below for some thought leadership highlights from this past year, and for a reminder of all that we’ve passed through in 2022:

January

Most prominently in 2022, the US Supreme Court handed down substantial rulings for coronavirus vaccine mandates, which affected not only healthcare workers but all employers across the country. With a 6-3 majority, SCOTUS stayed the Biden Administration’s OSHA Emergency Temporary Standard that applied to all private employers, but simultaneously ruled in a 5-4 majority that issued a 5–4 unsigned majority that vaccine mandates for medical facilities and medical workers can remain.

January also saw noteworthy changes to labor law in the United States, inviting a handful of significant standard changes for all employers. At the end of 2021 and early in 2022, the NLRB considered cases that altered the standard for determining independent contractor status, as well as the standard that established whether a facially neutral work rule violates Section 8(a)(1) of the National Labor Relations Act. These changes also paved the way for briefings on determining appropriate bargaining units.

Read January 2022’s thought leadership focusing on Labor and Employment law and the related Supreme Court rulings below for more information:

Supreme Court Stays Private Vaccine Mandate; Upholds Requirement for Certain Healthcare Workers

On Again, Off Again Vaccine Mandates: What Should Employers Do Now?

NLRB Rings in the New Year by Inviting Briefing on Multiple, Far-Reaching Standards Impacting Employers

February

On February 24, 2022, Russia launched a large-scale ground invasion of Ukraine, leading to considerable damage and loss of life and throwing the geopolitical landscape into chaos. Both in February and in the months since, the Russia-Ukraine war has placed an extraordinary strain on the global supply chain and businesses around the world, as the European Union, the United Kingdom, and the United States have continued to enforce sanctions and trade regulations. Companies must be careful to comply with these orders as the political landscape continues to change and learn how to juggle the dual headaches of the lingering COVID crisis and evolving Ukrainian war

Domestically, President Biden nominated Ketanji Brown Jackson to the US Supreme Court. Succeeding Justice Stephen Breyer, Judge Jackson graduated magna cum laude from Harvard University in 1992 and cum laude from Harvard Law in 1996 and has since served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. She is the first African American woman to serve on the United States’ highest court of law.

Read select thought leadership articles below for more information:

President Biden Nominates D.C. Circuit Judge Ketanji Brown Jackson to U.S. Supreme Court

Russian Invasion of Ukraine Triggers Global Sanctions: What Businesses Need to Know

Consequences from the Ukrainian Conflict

March

March of 2022 saw the long term impacts from the military conflict in Ukraine emerge locally and around the world. Sanctions continued to affect businesses, leading to global supply chain slowdowns and difficulties in manufacturing and shipping and new immigration changes and challenges. In the US, the Securities and Exchange Commission “SEC” issued new and noteworthy regulations regarding Environmental, Social & Corporate Governance “ESG” and climate change disclosures for public companies. The Supreme Court also heard oral argument for a large slate of cases, perhaps most notably in ZF Auto. US v. Luxshare, Ltd. and AlixPartners v. The Fund for Prot. of Inv. Rights in Foreign States, which interpreted provisions of Title 28 of the US Code’s (“Section 1782”) reach in seeking US-style discovery from a interested party to a foreign proceeding and whether or not ection 1782 can be used to obtain key information for private international arbitrations.

Read key thought leadership articles published in March for more details:

SEC Issues Long-Awaited Proposed Rule on Climate Disclosures

U.S. Supreme Court Hears Oral Argument on Circuit Split Over Scope of 28 U.S.C. § 1782 for Obtaining Discovery in International Arbitrations

The Effects of the Military Conflict in Ukraine on Supply Contracts

April

In April of 2022, the Biden Administration made notable changes to the National Environmental Policy Act, better known as NEPA, which had been substantially altered under the Trump Administration. A number of key provisions were returned to their pre-Trump state in order to better center the administration’s larger focus on environmental justice. Also of note, a US court for the first time contested the Center for Disease Control’s “CDC’s” travel mask mandate, on the grounds that it exceeded the CDC’s Statutory Authority under the Administrative Procedure Act “the federal APA”. This ultimately led to a vacating of the COVID travel mask mandate on a nationwide basis.

Elon Musk announced his intention to purchase Twitter in April of 2022, as well. Twitter ultimately adopted a shareholder rights plan, known as a poison pill, in hopes of preventingMusk’s hostile takeover. Poison pills are widely regarded as the an effective but a draconian anti-takeover defense available.

Read select thought leadership articles below for more information:

Biden Administration Walks Back Key Trump Era NEPA Regulation Changes

Twitter Board of Directors Adopts a Poison Pill

Administrative Law Takeaways from the Federal Travel Mask Mandate Decision

May

On May 17th, the first case of Monkeypox in the United States was reported in Massachusetts. In response, the Environmental Protection Agency “EPA” and the federal government implemented a number of policy changes in hopes of preventing a wider spread, including the speedy authorization of anti-Monkeypox claims for certain registered pesticides and disinfectant products.

The SEC and administrative law at large received a considerable blow after the Fifth Circuit’s ruling in Jarkesy v. SEC. The Fifth Circuit Court held that the SEC in-house courts violated a series of constitutional protections, which may result in far-reaching impacts for how administrative bodies are used to regulate in the future. Additionally in May, the Senate confirmed Commissioner Alvaro Bedoya for the Federal Trade Commission “FTC”, shifting the balance of power back at the Commission in favor of the Democratic Party.

Read the following highlighted thought leadership articles published in May for more information:

EPA Authorizes Anti-Monkeypox Claims for Pre-Designated Disinfectant Products

Fifth Circuit Holds That SEC Administrative Law Courts Are Unconstitutional

Big News at The FTC: Democrats Finally Get the Majority Back

June

In June of 2022, the Supreme Court released its decision in Dobbs v. Jackson, reversing Roe v. Wade’s 50-year precedent of ensuring abortion as a protected right. Dobb’s is a momentous decision and has resulted in a myriad of complex issues for employers, healthcare providers and individuals, including the updating of employee policies, healthcare provisions, ethical and criminal considerations for healthcare providers and the protection of personal data, and ultimately represents a massive shift away from women’s bodily autonomy in the United States. And the partial advance leak of the Dobb’s ruling, added to the myriad of concerns about the stability and public perception of the Supreme Court.

Other notable litigation and legislation in June included the passing of the Uyghur Forced Labor Prevention Act, subjecting the importers of raw materials from China to new enforcement provisions. The Supreme Court also ruled in West Virginia v. EPA, limiting the SEC’s ability to enforce ESG requirements on public companies. The West Virginia v. EPA ruling presents a considerable obstacle for the Biden Administration’s ongoing climate goals.

Read select legal news articles below for more information:

Employment Law This Week: SCOTUS Overturns Roe v. Wade – What Employers Should Consider [VIDEO]

Uyghur Forced Labor Prevention Act Enforcement Starts on Imports from China and on Imports with China Origin Inputs

Implications of West Virginia v. EPA on Proposed SEC Climate Rules

July

July of 2022 saw a great deal of changes for the Equal Opportunity Commission’s “EEOC’s” COVID testing guidance for employers. The largest change is determining if testing is needed to prevent workplace transmission and interpreting the business necessity standard under the American with Disabilities Act “ADA”.. The labor law landscape around the country also saw an increased focus on pay transparency laws – most notably, New York state passed a bill requiring employers to post salary or wage ranges on all job listings. Notably, this law is quite similar to one already in effect in New York City and Washington state, Colorado, and Jersey City.

Beginning most prominently in July, the cryptocurrency world also found itself under increased scrutiny by the federal government. Of note this month, the SEC filed a complaint against certain Coinbase employees, alleging insider trading and claiming that these employees had tipped off others regarding Coinbase’s listing announcements. This move was one of the more aggressive moves made by the SEC toward the digital asset industry.

Read select legal thought leadership articles published in July for more information:

EEOC Revises COVID-19 Testing Guidance for Employers

SEC v. Wahi: An Enforcement Action that Could Impact the Broader Crypto / Digital Assets Industry

Pay Transparency Laws Are All The Rage: Looks Like New York State Is Joining the Party

August

On August 12, 2022, the Inflation Reduction Act (“IRA”) was passed by Congress, representing enormous changes for industries across the country. Perhaps most notably, the landmark legislation contained new government incentives for the clean energy sector, creating tax incentives for renewable energy projects that previously did not exist. The Act also included 15% alternative minimum corporate tax and a 1% excise tax on stock buybacks to raise government revenue.

The Inflation Reduction Act also provided significant funding for tribal communities, including but not limited to the reduction of drug prices, the lowering of energy costs, and additional federal infrastructure investments. While the funding is not as significant as COVID relief from previous years and there are still some remaining hurdles, the IRA provides groundbreaking new opportunities for Native communities, including those in Alaska and Hawaii.

Read the select legal articles published in August for more information:

The Inflation Reduction Act: How Do Tribal Communities Benefit?

The Inflation Reduction Act: A Tax Overview

Relief Arrives for Renewable Energy Industry – Inflation Reduction Act of 202

September

In September of 2022, Hurricane Ian made landfall in the United States, caused substaintial property damage and loss of life despite preparations ahead of time. After addressing safety concerns, policyholders began reviewing their insurance policies, collecting documentation and filing claims. In addition to filing claims for property damage, corporate policyholders also filed claims for business interruption and loss of business income.

Lawsuits opposing the remaining COVID-19 vaccine mandates also continued throughout the month of September, exceeding 1,000 complaints nationally. Previously, lawsuits had largely targeted the Biden Administration, but additional focus was also directed toward large employers with vaccine mandates.

Of global significance, Queen Elizabeth II, the UK’s longest reigning monarch, passed away at 96 years old. Her funeral was held September 19, 2022, and was a national holiday in the United Kingdom marking the last day of public mourning.

Read following key thought leadership articles on Hurrican Ian, UK Bank Holiday due to the Sovereign’s passing and Employer’s COVID Mandate headaches for more information:

Hurricane Ian – Navigating Insurance Coverage

Bank Holiday Announced for Her Majesty Queen Elizabeth II’s State Funeral

Challenges Against Employer COVID-19 Vaccine Mandates Show No Sign of Slowing

October

October saw forward movement in environmental justice, cannabis decriminalization, and Artificial Intelligence “AI” regulation. The EPA launched their new Office of Environmental Justice and External Civil Rights, to work with state, local, and tribal partners providing financial and technical support to underserved communities disproportionately impacted by the ill effects of climate change. The EPA’s new office has 200 staff members across 10 regions and is expected to provide a unifying focus on civil rights and environmental justice for the EPA and federal government as a whole.

President Biden’s pardon of federal marijuana charges and mandate to review the plant’s Schedule I status signaled a shift in cannabis regulation, with the president urging state officials to follow his example and consider the contrast between wealthy cannabis business owners and those imprisoned for possession in the recent past.

Later in the month, the White House Office of Science and Technology Policy addressed the swell of artificial intelligence technology with their Blueprint for an AI Bill of Rights, which provides guidelines to prevent privacy violations, implicit bias, and other forms of foreseeable harm.

Read selected thought leadership articles below for more information:

EPA Launches Their New Office: What Does the Office of Environmental Justice and External Civil Rights Mean for Companies and ESG in the United States?

“Up in Smoke?” President Biden Announces Pardons and Orders Review of Cannabis Classification

The White House’s AI Bill of Rights: Not for the Robots

November

November was dominated by a nail-biting midterm election season, a cryptocurrency catastrophe, and NDA (Non Disclosure Agreement) reform. While the midterms did not result in a Red Wave as expected, Republicans were able to regain a small majority in the House of Representatives, with the Senate remaining in Democratic control.

The digital finance world was considerably less stable, with the second largest cryptocurrency trading platform, FTX, filing for bankruptcy three days after its lawyers and compliance staff abruptly resigned. The collapse brought into stark relief the importance of solidifying the cryptocurrency custody and insurance landscape.

Also of note, President Biden signed the Speak Out Act, rendering unenforceable nondisclosure and nondisparagement agreements signed prior to incidents of sexual harassment or assault. The law’s passage offers employers the opportunity to review their states’ more robust laws in this area and ensure clauses meant to protect trade secrets and proprietary information don’t inadvertently create issues for sexual misconduct claimants.

Read select thought leadership articles below fora deeper dive:

2022 Midterm Election Guide

The Spectacular Fall of FTX: Considerations about Crypto Custody and Insurance

Nondisclosure and Nondisparagement Agreements in Sexual Harassment and Assault Cases: Speak Out Act Heads to President’s Desk

December

In December, the Federal Trade Commission (FTC) released their hotly anticipated “Green Guides” amendment proposals, intended to combat greenwashing amidst growing demand for environmentally friendly products. The amended Guides for the Use of Environmental Marketing Claims would impose stricter standards for the use of terms such as “recyclable,” “compostable,” “organic,” and “sustainable” in advertising and on packaging.

Meanwhile, Congress narrowly avoided a railroad worker strike by passing Railway Labor Act legislation affirming all tentative agreements between rail carriers and unions. The contracts included a roughly 24% increase in wages over 4-5 years, along with an extra day of leave. Biden promised to address paid leave further in the near future.

The National Labor Relations Board (NLRB) closed out 2022 with a number of impactful decisions favoring workers. Employees have expanded remedies for National Labor Relations Act violations and protection during Section 7 questioning, while employers have the burden of proof when seeking to expand micro-units or deny union protestors.

Read select legal thought leadership pieces below for more details:

Congress Votes to Impose Bargaining Agreement to Avoid Nationwide Railroad Strike

FTC Starts Long-Awaited Green Guides Review

NLRB Issues Flurry of Blockbuster End-of-Year Decisions (With More to Come?) (US)

Thank you to our dedicated readers and as always to our highly regarded contributing authors and our talented NLR editorial staff for working day in and day out to produce one of the most well read and reputable business law publications in the US. Have a happy 2023!

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Overview

Supreme Court Precedent

The Court’s Additional Considerations

Impact on Private Employers

Practical Tips For Employers

Conclusion

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Introduction

Statutory Framework

The Right to a Jury Trial for Federal Whistleblowers

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Background

Older Offenses

De Minimis Offenses

Consent Applications

Key Takeaways

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EPA Announces $100 Million in Grants to Community Groups

Federal Cumulative Impact Guidance

Takeaways for the Regulated Community

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January

February

March

April

May

June

July

August

September

October

November

December

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