Category: Labor & Employment

EEOC Issues Long-Awaited Guidance on Harassment in the Modern Workplace

On September 29, 2023, the U.S. Equal Employment Opportunity Commission issued long-awaited enforcement guidance on workplace harassment. The “Proposed Enforcement Guidance on Harassment in the Workplace,” published in the Federal Register on October 2, 2023, advises employers on handling new workplace realties, including LGBTQ rights, online misconduct, abortion, and a number of different types of harassment.

This new guidance is the first voted document the EEOC has issued on harassment since its “Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors” in 1999.

The EEOC’s new guidance responds to the changing workplace landscape and salient issues confronting employers as a result of the #MeToo movement, the COVID-19 pandemic, the overturning of Roe v. Wade, and the U.S. Supreme Court’s decision in Bostock v. Clayton County that sex discrimination includes bias on the basis of gender identity and sexual orientation.

LGBTQ Harassment

Consistent with its long-standing position amplified by the Bostock v. Clayton County decision, the EEOC guidance emphasizes that sex discrimination includes sexual orientation and gender identity.

For example, the guidance discusses misgendering as a type of actionable harassment, stating that refusing to use a name or pronoun “consistent with the individual’s gender identity” may constitute harassment. According to the EEOC, another potential form of sex-based harassment is refusing to allow an employee to use a bathroom that matches their gender identity.

Further, religious accommodations for employees with sincerely held religious beliefs do not include allowing an employee with such accommodations to create a hostile work environment for an LGBTQ co-worker. In other words, the obligation to accommodate an employee’s religious beliefs does not extend to religious beliefs that infringe on another employee’s protected category.

Online Harassment

The EEOC guidance also addresses remote work, teleconferencing, and social media issues that have grown out of the way employees work coming out of the COVID-19 pandemic. The guidance emphasizes that conduct within a virtual work environment can contribute to a hostile work environment.

Going a step further, the EEOC also notes that employers may be liable for harassment occurring online, even if only over employees’ private social media accounts. If put on notice of the conduct, the employer may need to take remedial steps or disciplinary action against the offending employee for their non-workplace and non-worktime conduct.

Harassment Based on Reproductive Decision-Making

The draft guidance notes that sex-based harassment includes mistreatment based on an employee’s pregnancy and reproductive decisions, such as decisions about contraception or abortion. This is consistent with the EEOC’s longtime stance that terminating a pregnancy constitutes a pregnancy-related condition protected under the law.

The EEOC’s proposed guidance, which remains open for public comment until November 1, 2023, covers a number of other topics. Given the comprehensive guidance and constantly changing landscape of the modern workplace, employers are strongly encouraged to seek advice of counsel to ensure compliant policies and practices. Employers’ harassment policies in particular should be carefully reviewed in light of this guidance, including policies on religion, race, and national origin, in addition to sexual harassment policies.

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Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.
For more articles on employment law, visit the NLR Labor & Employment section.

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.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.

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

NLRB Issues Memo on Non-competes Violating NLRA

On May 30, 2023, Jennifer Abruzzo, the general counsel for the National Labor Relations Board (NLRB), issued a memorandum declaring that non-compete agreements for non-supervisory employees violates the National Labor Relations Act. The memo explains that having a non-compete chills employees’ Section 7 rights when it comes to demanding better wages. The ­theory goes that employees cannot threaten to resign for better conditions because they have nowhere to go. Non-compete agreements also prohibit employees from seeking better working conditions with competitors and/or soliciting coworkers to leave with them for a local competitor.

Experts have yet to weigh in, but ultimately this issue will be decided by the federal courts. As an employer, if you employ any non-supervisory employees that are subject to a non-compete agreement, an unfair labor practice charge could be filed, and it appears the NLRB would lean towards invalidating the agreement, though all evidence would have to be taken into consideration.

© 2023 Jones Walker LLP

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

NLRB Issues Complaint for Athlete Misclassification against NCAA, Pac-12, and USC

On May 18, 2023, the National Labor Relations Board’s (the Board) regional director in Region 31 issued a complaint against the National Collegiate Athletic Association (NCAA), the Pac-12 Conference, and the University of Southern California (USC), alleging they violated the National Labor Relations Act (the Act) by misclassifying college football and basketball players as “non-employee student-athletes.” The original charge was issued back in February 2022 and alleged all three entities were in violation of the Act as “joint employers” of these athletes.

While this issue is not necessarily new to higher education, the Board’s decision to issue a complaint—and issue that complaint against all three entities—is new ground, as it departs from a 2015 precedent and paves the way for student-athletes to unionize at potentially both private and now public institutions. Under the Act, the Board has authority over private-sector workers, while state labor boards have jurisdiction over employees at state institutions. However, because the students at issue in Thursday’s complaint would be considered employees of the private NCAA and Pac-12 as well as USC, all three entities would be subject to potential liability as “joint employers.” What this means for public institutions is that there is a real and likely potential that the “joint employer” doctrine will allow for an end run around the Act’s coverage exemption for public-sector entities. As such, all student-athletes could potentially seek to collectively bargain at the NCAA level.

Finding merit to the charge and issuing this complaint is a logical result of General Counsel (GC) Memorandum GC 21-08 issued by the Board’s GC Jennifer Abruzzo in late September 2021. At that time, we issued an alert detailing the GC’s desire to expand the definition of “employee” in order to bring scholarship collegiate athletes under the Act. In February 2022, we issued another alert detailing how USC was likely to be the test case for that endeavor.

Alleging the violation of Section 7 of the Act, Thursday’s complaint arises from charges filed by the National College Players Association, a nonprofit advocacy association founded by former UCLA football player Ramogi Huma. The charge and complaint asserted that USC, the Pac-12, and NCAA misclassified student-athletes in order to deny them their rights under the Act, including the right to speak about compensation and working conditions. In addition to the alleged misclassification issue, the complaint alleges that USC illegally obstructed athletes’ organizing by “maintaining unlawful rules and policies in its handbook, including restricting communications with third parties, in the media, etc.”

Colleges and universities may be tempted to minimize this issue by thinking that the shift to seeing student-athletes as employees would affect them only in the event their athletes attempt to form a union. That is not the case. While a Board determination that student-athletes are employees could lead to a renewed effort by college athletes to organize, the GC has already cautioned (and made good on that warning) that the Board will seek to issue unfair labor practice charges against colleges and universities that misclassify student-athletes as “non-employees” or engage in other violations of the Act. For example, the GC has previously made clear that protections afforded by the Act apply to concerted activity such as expressions of support for social justice issues and other advocacy. As such, higher education institutions would be wise to tread lightly into these waters when they arise, because where employee status exists, concerted efforts of those employees to speak their minds or speak out on certain issues will be viewed as protected under the Act.

The hearing on the Board’s complaint is set for November 7, 2023.

© Steptoe & Johnson PLLC. All Rights Reserved.

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

Marijuana in the Manufacturing Workplace

The requirement to maintain a safe workplace often clashes with state and local laws that protect the rights of individuals who use marijuana while off-duty, creating unique challenges for manufacturing employers.

Manufacturing employers still may prohibit the use of marijuana at work, as well as marijuana impairment at work. But marijuana drug testing is complicated and controversial because of the legal protections for off-duty marijuana use in some states and cities, the legal protections for medical marijuana users in many jurisdictions, and because there are no drug tests that can detect current marijuana impairment or very recent use of marijuana.

Federal Law

Manufacturers no longer should defend “zero tolerance” marijuana drug testing policies. Previously, employers could argue that marijuana still is illegal under federal law or that the employer is a federal contractor that must comply with the federal Drug-Free Workplace Act. The federal government has not enforced the law that makes marijuana illegal for some time, and it has permitted states to create and enforce their own laws with respect to medical and recreational marijuana.

Some courts have recognized that the federal government is allowing state governments to regulate marijuana and, therefore, courts are enforcing state marijuana laws despite marijuana’s illegal status at the federal level. Courts also have rejected arguments that federal contractors “must follow federal law” because the federal Drug-Free Workplace Act does not require drug testing and does not permit employers to regulate off-duty conduct.

State Laws

At present, 39 states and the District of Columbia have medical marijuana laws, while 22 states and the District of Columbia have recreational marijuana laws (Maryland’s law will take effect in July and others will be enacted in the coming months). Many of these laws provide employment protections to applicants and employees. The variations in the laws make it difficult for multi-state manufacturers to have consistent marijuana policies in all locations.

What It Means for Employers

Due to the recent trend in some states to protect off-duty use of marijuana, and even prohibiting pre-employment marijuana testing, many manufacturers are discontinuing pre-employment marijuana testing, especially in states where marijuana is legal. Applicants often are surprised to learn that a positive marijuana drug test will lead to withdrawal of the job offer. If the positive marijuana drug test result is due to medical use (and there are no general off-duty protections in the state), manufacturers must be familiar with the applicable law.

Some states prohibit discrimination against medical marijuana users, while other states may allow an employer to take an adverse employment action if the job is considered “safety-sensitive,” i.e., a job with dangerous duties, as defined by applicable state law.

In certain other states where discrimination is prohibited and the manufacturing employer has safety concerns, the employer should engage in the “individualized assessment” and “direct threat analysis” required under state laws that mirror the federal Americans With Disabilities Act. This process includes discussions with the applicant and the applicant’s physician to assess the safety risk.

Reasonable suspicion marijuana testing is permissible in most states because impairment at work never is permitted. In states where off-duty marijuana use is protected, manufacturers should rely on the impaired behaviors when taking disciplinary action, rather than rely solely on the positive marijuana drug test result (assuming that testing for marijuana is permitted). This is because marijuana stays in the human body for a long time, so the positive drug test result is not conclusive proof that the employee was impaired at work. Manufacturers also should make sure that supervisors and managers are trained to observe and document reasonable suspicion determinations properly, as these documented observations will be key evidence in a potential lawsuit.

To make matters even more complicated, CBD (cannabidiol), “low THC,” and hemp products are being marketed and sold everywhere since Congress legalized hemp (having no more than 0.3 percent THC, the psychoactive component of marijuana) in 2018. Separate from marijuana laws, the use of “low THC” or CBD products is allowed in a number of states, usually for medical purposes, which means that manufacturing employers should tread carefully when an applicant or employee claims to use CBD products for medical reasons. While many CBD and hemp products are marketed as having little or no THC, these statements may not be true, because the U.S. Food and Drug Administration does not yet regulate them. These products may cause positive drug test results for marijuana. There has been an increase in lawsuits where former employees claim that their positive marijuana drug test results allegedly were caused by CBD products.

While it appears that marijuana eventually will be legalized at the federal level, manufacturers must ensure they are complying with all applicable laws. Manufacturing employers should:

  • Review drug and alcohol policies for compliance with applicable drug testing and marijuana laws;
  • Remove marijuana from the drug testing panel in locations where testing for marijuana is prohibited and locations where off-duty use is protected and consider removing it in other locations where it may be an obstacle in the hiring process;
  • Train Human Resources employees and other managers to engage in the interactive process with employees who use medical marijuana (or medical CBD products); and
  • Train supervisors to make appropriate and timely “reasonable suspicion” determinations.

Jackson Lewis P.C. © 2023

For more cannabis legal news, click here to visit the National Law Review.

Automating Entertainment: Writers Demand that Studios Not Use AI

When the Writers Guild of America (WGA) came with their list of demands in the strike that has already grinded production on many shows to a halt, chief among them was that the studios agree not to use artificial intelligence to write scripts. Specifically, the Guild had two asks: First, they said that “literary material,” including screenplays and outlines, must be generated by a person and not an AI; Second, they insisted that “source material” not be AI-generated.

The Alliance of Motion Picture and Television Producers (AMPTP), which represents the studios, rejected this proposal. They countered that they would be open to holding annual meetings to discuss advancements in technology. Alarm bells sounded as the WGA saw an existential threat to their survival and that Hollywood was already planning for it.

Writers are often paid at a far lower rate to adapt “source material” such as a comic book or a novel into a screenplay than they are paid to generate original literary material. By using AI tools to generate an outline or first draft of an original story and then enlisting a human to “adapt” it into screenplay, production studios potentially stand to save significantly.

Many industries have embraced the workflow of an AI-generated “first draft” that the human then punches up. And the WGA has said that its writers’ using AI as a tool is acceptable: There would essentially be a robot in the writers’ room with writers supplementing their craft with AI-generated copy, but without AI wholly usurping their jobs.

Everyone appears in agreement that AI could never write the next season of White Lotus or Succession, but lower brow shows could easily be AI aped. Law and Order, for instance, is an often cited example. Not just because it’s formulaic but because AIs are trained on massive data sets of copyrighted content and there are 20 seasons of Law and Order for the AI to ingest. And as AI technology gets more advanced who knows what it could do? Chat GPT was initially released last November and as of writing we’re on GPT-4, a far more powerful version of a platform that is advancing exponentially.

The studios’ push for the expanded use of AI is not without its own risks. The Copyright Office has equivocated somewhat in its determination that AI-generated art is not protectable. In a recent Statement of Policy, the Office said that copyright will only protect aspects of the work that were judged to have been made by the authoring human, resulting in partial protections of AI-generated works. So, the better the AI gets—the more it contributes to cutting out the human writer—the weaker the copyright protection for the studios/networks.

Whether or not AI works infringe the copyrights on the original works is an issue that is currently being litigated in a pair of lawsuits against Stability AI, the startup that created Stable Diffusion (an AI tool with the impressive ability to turn text into images in what some have dubbed the most massive art heist in history). Some have questioned whether the humans who wrote the original episodes would get compensated, and the answer is maybe not. In most cases the scripts were likely works for hire, owned by the studios.

If the studios own the underlying scripts, what happens to the original content if the studios take copyrighted content and put it through a machine that turns out uncopyrightable content? Can you DMCA or sue someone who copies that? As of this writing, there are no clear answers to these questions.

There are legal questions and deeper philosophical questions about making art. As the AI improves and humans become more cyborgian, does the art become indistinguishable? Prolific users of Twitter say they think their thoughts in 280 characters. Perhaps our readers can relate to thinking of their time in 6 minute increments, or .1’s of an hour. Further, perhaps our readers can relate to their industry being threatened by automation. According to a recent report from Goldman Sachs, generative artificial intelligence is putting 44% of legal jobs at risk.

© Copyright 2023 Squire Patton Boggs (US) LLP

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

The End of the COVID Public Health Emergency and Its Effect on Employee Benefit Plans

The COVID-19 public health emergency ends on May 11, 2023. The emergency resulted in two big changes to welfare plans: the relaxation of certain notification and timing requirements, and the requirement for plans to cover COVID testing and vaccination at no cost to plan participants. While the public health emergency ends May 11, 2023, plans have a grace period until July 11 to take certain actions and come into compliance with the normal rules.

Plan Sponsor Requirements

Before the grace period ends, plan sponsors will generally need to follow the rules that existed before COVID. Among the most important of these rules are the requirements for plan sponsors to:

  • Timely provide all notices, including those for HIPAA and COBRA.
  • Review COVID-related coverage under their employee assistance programs (EAPs) to determine if such coverage would be considered “significant medical care,” which can result in additional reporting and compliance obligations.
  • Review telehealth options to ensure they are properly integrated and provided by an entity that can comply with the post-COVID requirements. Telehealth rules were substantially relaxed during COVID. With telehealth now expected and utilized by more participants, getting telehealth right is more crucial than before.

Plan Sponsor Decisions

With the end of the public health emergency, plan sponsors must also make several important decisions with respect to their employee benefit plans:

  • Whether testing will continue free of charge or will be subject to cost sharing.
  • Whether non-preventative care vaccines for COVID will continue to be free of charge.
  • Whether costs for certain COVID-related services will continue to be posted.

As they are mostly based on what costs the plan sponsor or plan will cover going forward, these plan sponsor decisions are largely business-related. In the absence of a choice by the plan sponsor, the insurance provider will likely make a default choice. The important legal consideration is that the plan documents and employee communications should be consistent and accurately reflect the plan sponsor’s decisions.

Participant Requirements

In addition to the changes for plan sponsors, the end of the public health emergency will result in the reinstatement of a number of rules applicable to participants. Participants will need to:

Follow the HIPAA Special Enrollment timing rules.

Elect COBRA within the 60-day window for elections.

Make all COBRA payments timely.

Timely notify the plan of disabilities and qualifying events under COBRA.

Follow the timing limitations of their plans and insurance policies regarding filing claims, appeals, and external reviews.

Next Steps

First, plan sponsors should decide what COVID-related coverage will remain fully paid by the plan, if any. Some insurance companies are already starting to communicate with participants, and maintaining a consistent message will avoid unnecessary problems.

Second, plan sponsors should review their EAP and telehealth coverages for compliance with the rules that will soon be in effect. To the extent necessary, plan sponsors should update the documentation for their plans.

Finally, plan sponsors should consider a voluntary reminder communication to participants. Many rules have been relaxed over the last two years or so, and participants may be confused regarding the rules. A reminder may save stress for participants and those administering the plan, and will also serve to document the plan sponsor’s intention to properly follow the terms of the plan.

© 2023 Varnum LLP

For more healthcare legal news, click here to visit the National Law Review.

DOJ Fighting for E-Sports Player Compensation

The Biden administration continues its campaign against wage suppression as a source of harm to workers, competitive markets, and the economy. In its latest move, the Department of Justice is supporting players in professional e-sports leagues with a suit to stop Overwatch and Call of Duty developer, Activision Blizzard, Inc., from capping player compensation. Unlike salary restrictions in traditional sports leagues, those implemented by Activision were not produced through collective bargaining and, therefore, are not exempt from antitrust scrutiny.

Complaint and Consent Decree

The DOJ filed suit to challenge Activision’s wage restrictions on April 3rd, alleging Activision and independently-owned teams in two e-sports leagues agreed to implement certain wage restrictions, including a “Competitive Balance Tax.” The tax penalizes teams in the Overwatch and Call of Duty leagues if player compensation exceeds a threshold set by Activision. According to the complaint, this agreement violates Section 1 of the Sherman Act.

The DOJ concurrently filed a consent decree to address the competition issues. If approved by the court, the consent decree would prohibit Activision from implementing any restriction that would limit player compensation directly or indirectly. It would also require Activision to, among other things, certify it has terminated competitive balance taxes and implement antitrust compliance and whistleblower policies.

Ongoing Antitrust Issues Concerning Activision-Microsoft Merger

 While Activision was negotiating the consent decree with the DOJ, its potential parent company, Microsoft, was continuing to defend its proposed $69 billion acquisition of Activision. In December 2022, the FTC sued to block the merger, claiming “the largest ever [acquisition] in the video gaming industry” would enable Microsoft to suppress competitors of Xbox and its rapidly growing subscription content and cloud-gaming business. This case remains pending.

[Read Jonathan Rubin’s Dec. 12, 2022, commentary on the FTC’s challenge, titled, “An Unstoppable Force Meets an Immovable Object: Microsoft to Fight FTC Over Activision Deal.”]

Microsoft has had more success with antitrust agencies overseas. While the European Commission initially put the deal on hold in December 2022, Reuters and Polygon.com reported the Commission’s concerns have been mollified by Microsoft’s commitment to offer licenses to rival gaming companies. Polygon has also reported that the U.K. Competition and Markets Authority has “set aside some of its main concerns” about the merger. It quotes the CMA as stating that “the cost to Microsoft of withholding Call of Duty from PlayStation would outweigh any gains from taking such action.” The deal has also been approved in Japan, Chile, Brazil, Saudi Arabia, and Serbia, Polygon reports.

Non-Statutory Exemption Inapplicable to E-Sports Salary Restrictions

Readers may be wondering why salary caps are commonplace in traditional sports leagues like the NFL, NBA and NHL but not permitted in e-sports leagues. The key distinction is that the salary caps in traditional sports leagues are negotiated and agreed to by player unions as part of the collective bargaining process. As a result, these salary caps (and the agreements containing them) fall under the “non-statutory antitrust exemption,” which was created by the Supreme Court to resolve the inherent conflict between the underlying goals of antitrust laws and labor laws.

Specifically, the non-statutory exemption relieves parties to an agreement restraining trade from antitrust liability where (1) the restraint primarily affects the parties to the agreement and no one else, (2) the agreement concerns wages, hours, or conditions of employment that are mandatory subjects of collective bargaining, and (3) the agreement is produced from bona fide, arm’s-length collective bargaining. The restraints at issue here do not satisfy either the first or third prongs because they affect the e-sports players, who were not parties to the agreement, and were not produced through collective bargaining. Therefore, unlike salary restrictions in other professional sports leagues, those agreed to by Activision and the independent teams are subject to the antitrust laws.

© MoginRubin LLP
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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 

Thank you for listening to the National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple Podcasts, Spotify, or wherever you get your podcasts for more episodes. For the latest legal news, or if you’re interested in publishing and advertising with us, visit www.natlaw review.com. We’ll be back soon with our next episode.

Copyright ©2023 National Law Forum, LLC
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Sexual Harassment Prevention Training Deadline Approaches for Chicago Employers

As a reminder to employers in Chicago, anti-sexual harassment training is required by Chicago’s Human Rights Ordinance and must be completed by July 1, 2023.  This requirement applies to all Chicago employers, regardless of size or industry.

The training consists of one (1) hour of anti-sexual harassment training for all non-supervisory employees and two (2) hours of anti-sexual harassment training for supervisory employees.  Regardless of supervisory status, all employees must also undergo one (1) hour of bystander training.  Employers must provide training on an annual basis.  Additional information about training requirements can be found here. Employers who fail to comply may be subject to penalties.

Article By Audrey H. Shinn of Vedder Price

© 2023 Vedder Price