Discrimination

Expert Analysis

• Eye On Compliance: EEOC Focus On Workplace AI

  

  With the U.S. Equal Employment Opportunity Commission’s recent guidance and enforcement focus on the use of artificial intelligence tools during the hiring process and other job-related assessments, companies should be mindful that anti-discrimination laws apply equally to both human- and AI-generated decisions, say Laura Stutz and Lisa Ackerman at Wilson Elser.

• 5th Circ. Ruling Sets Bostock, Faith Exemption Up For Review

  

  The Fifth Circuit's Braidwood v. Equal Employment Opportunity Commission decision could tee up U.S. Supreme Court review of whether employing an individual to whose protected class the employer objects infringes on the employer's religious beliefs, potentially narrowing LGBTQ worker protections from the high court's 2020 Bostock v. Clayton County decision, says Adam Grogan at Bell Law.

• Legal Profession Gender Parity Requires Equal Parental Leave

  

  To truly foster equity in the legal profession and to promote attorney retention, workplaces need to better support all parents, regardless of gender — starting by offering equal and robust parental leave to both birthing and non-birthing parents, says Ali Spindler at Irwin Fritchie.

• Why Employers Should Refrain From 'Quiet Firing'

  

  While quiet firing — when an employer deliberately makes working conditions intolerable with the goal of forcing an employee to quit — has recently been identified in the news as a new trend, such constructive discharge tactics have been around for ages, and employers would do well to remember that, comparatively, direct firings may provide more legal protection, says Robin Shea at Constangy.

• 5 New Calif. Laws Employers Need To Know

  

  Now is a good time for employers to evaluate personnel rules to keep pace with California’s newly adopted employee protections, which go into effect early next year and include laws regarding reproductive loss leave, cannabis use, workplace violence prevention and noncompete agreements, say attorneys at Farella Braun.

• 3 Employer Strategies To Streamline Mass Arbitrations

  

  Workers under arbitration agreements have gained an edge on their employers by filing floods of tedious and expensive individualized claims, but companies can adapt to this new world of mass arbitration by applying several new strategies that may streamline the dispute-resolution process, says Michael Strauss at Alternative Resolution Centers.

• How AI 'Cultural Fit' Assessments Can Be Analyzed For Bias

  

  Attorneys at Sanford Heisler explore how the use of artificial intelligence to assess workplace cultural fit may provide employees with increased opportunities to challenge biased hiring practices, and employers with more potential to mitigate against bias in algorithmic evaluations.

• High Court's Old, Bad Stats Analysis Can Miss Discrimination

  

  Courts and practitioners should reconsider a common statistical test for evidence of employment discrimination, created by the U.S. Supreme Court for its 1977 Castaneda and Hazelwood cases, because its “two or three standard deviations” criteria stems from a misunderstanding of statistical methods that can dramatically minimize the actual prevalence of discrimination, says Daniel Levy at Advanced Analytical Consulting Group.

• Transparency And Explainability Are Critical To AI Compliance

  

  Although there is not yet a comprehensive law governing artificial intelligence, regulators have tools to hold businesses accountable, and companies need to focus on ensuring that consumers and key stakeholders understand how their AI systems operate and make decisions, say Chanley Howell and Lauren Hudon at Foley & Lardner.

• In Focus At The EEOC: Emerging And Developing Issues

  

  The U.S. Equal Employment Opportunity Commission's recently finalized strategic enforcement plan highlights how the agency will prioritize its limited resources over the next four years, and the most notable emerging issues include ensuring protections for pregnant workers and those dealing with long-term COVID-19 effects, says Jim Paretti at Littler.

• Employer Takeaways From 2nd Circ. Equal Pay Ruling

  

  The Second Circuit 's recent decision in Eisenhauer v. Culinary Institute of America reversed a long-held understanding of the Equal Pay Act, ultimately making it easier for employers to defend against equal pay claims brought under federal law, but it is not a clear escape hatch for employers, say Thelma Akpan and Katelyn McCombs at Littler.

• AI Isn't The Wild West, So Prepare Now For Bias Risks

  

  In addition to President Joe Biden's recent historic executive order on safe, secure and trustworthy artificial intelligence, there are existing federal and state laws prohibiting fraud, defamation and even discrimination, so companies considering using or developing AI should take steps to minimize legal and business risks, says civil rights attorney Farhana Khera.

• AI's Baked-In Bias: What To Watch Out For

  

  The federal AI executive order is a direct acknowledgment of the perils of inherent bias in artificial intelligence systems, and highlights the need for legal professionals to thoroughly vet AI systems, including data and sources, algorithms and AI training methods, and more, say Jonathan Hummel and Jonathan Talcott at Ballard Spahr.