Discrimination

Expert Analysis

• AI Bias Panel Shows EEOC Should Ditch Four-Fifths Rule

  

  The U.S. Equal Employment Opportunity Commission should respond to a January expert panel's criticism of EEOC adverse impact tests by abolishing the four-fifths rule, a move that would endorse the superior methods established by case law and prevent artificial intelligence vendors from using bad policy to dodge potential Title VII claims, say Christine Webber and Samantha Gerleman at Cohen Milstein.

• Tips For Handling Employee Pay Scale Asks As Laws Expand

  

  Due to the increase in pay transparency legislation, companies are being forced to get comfortable with pay-related discussions with their employees, and there are best practices employers can apply to ensure compliance with new laws and address the challenging questions that may follow, say Maria Stearns and Joanna Blake at Rutan & Tucker.

• The Wide Oversight Implications Of Del. McDonald's Ruling

  

  The Delaware Chancery Court's recent ruling that a McDonald's officer had oversight obligations on par with directors has wide-reaching implications for Delaware corporate law, including precedent for the court to hear sexual harassment claims, say attorneys at Fried Frank.

• Fielding Remote Work Accommodation Requests Post-COVID

  

  The Eighth Circuit's recent decision in Mobley v. St. Luke's may indicate how a court will analyze whether remote work is a reasonable accommodation under the Americans with Disabilities Act in an instance where an employee successfully performed work remotely during the pandemic, providing a road map for employers, says Kenneth Winkler at Berman Fink.

• The Little-Known Rule SEC Used In Sweeping Activision Case

  

  The U.S. Securities and Exchange Commission's recent $35 million settlement with Activision Blizzard is based on an aggressive and open-ended interpretation of the disclosure-controls requirement, which companies may not even plausibly be able to comply with, say David Kornblau and Charles Farrell at Dentons.

• Employer Tips As EEOC Urges Return To Low Retaliation Bar

  

  In light of recent U.S. Equal Employment Opportunity Commission pressure on courts to return to the low employer retaliation threshold the U.S. Supreme Court set in Burlington Northern v. White in 2006, companies should take precautionary measures before considering disciplinary actions against employees, say Denise Giraudo and Maryam Gueye at Sheppard Mullin.

• Higher Ed Can't Recycle Cannabis Policies For Psychedelics

  

  As efforts to legalize and decriminalize psychedelic substances proliferate, higher education must recognize the nuanced legal issues that distinguish these drugs from cannabis, and consider a unique approach to the possession, use and research of psychedelics on campus, say attorneys at Saul Ewing.

• Broncos Job Interview Offer Shows Risks Of Worker Litigants

  

  The risks the Denver Broncos would have faced by interviewing or hiring coach Brian Flores, who filed a discrimination suit against the team in 2022, should inspire companies to take practical steps to minimize employees' ability to claim employer retaliation or access sensitive company data, says Christopher Deubert at Constangy.

• How Does The 4th Circ. Define A Hostile Work Environment?

  

  In Laurent-Workman v. Wormuth, the Fourth Circuit recently showed an expanded view of what a hostile work environment looks like, an analysis that stands in sharp contrast to the circuit court's prior decisions, say Kirsten Eriksson and Elisabeth Hall at Miles & Stockbridge.

• How Marijuana Pardons Affect Employee Background Checks

  

  In light of President Joe Biden's blanket pardon for federal simple marijuana possession and state governors' recent actions, employers should be careful about compliance with anti-discrimination laws when pardoned convictions come up in job applicants' criminal record checks, say Danielle Dwyer and Jesse Stavis at Duane Morris.

• Ruling Shows New Potential For Retroactive For-Cause Firings

  

  A New York federal court's recent decision in Kulick v. Gamma Real Estate shed light on the important question of whether an employer may retroactively terminate an employee for cause and opened the door for such terminations based on what is known as the after-acquired evidence doctrine, say Reid Skibell and Megan Reilly at Glenn Agre.

• What To Expect From Justices' Upcoming Religious Bias Case

  

  If the U.S. Supreme Court increases the standard to show undue hardship in its upcoming review of Groff v. DeJoy, it could alter the balance between business interests and individual religious liberty, which may in turn make it harder for employers to decline religious accommodation requests, say Tory Summey and Emily Bridges at Parker Poe.

• FTC Noncompete Ban Could Open State Litigation Floodgate

  

  The Federal Trade Commission’s recently proposed ban on most employment noncompete agreements is likely to result in a cascade of litigation on the state level, providing a basis for private consumer class actions and state attorney general enforcement, say Ryan Strasser and Carson Cox at Troutman Pepper.