Discrimination

Expert Analysis

• Everyrealm Case Spurs Big Workplace Arbitration Questions

  

  If a New York federal judge's recent textualist ruling in Johnson v. Everyrealm denying arbitration of an entire employment lawsuit is appealed and upheld, it could set the stage for significant impairment of the enforcement of arbitration agreements, says Rex Berry at Signature Resolution.

• A Worker's Guide To Fighting Discriminatory Layoffs

  

  Recent mass layoffs have hit the tech industry particularly hard, and while a reduction in force can present hurdles for employees to vindicate their rights, it does not insulate employers from liability for discrimination, retaliation and other employment law violations, say attorneys at Sanford Heisler.

• McDonald's Harassment Ruling And 'Mission-Critical Risk'

  

  The Delaware Chancery Court's recent decision in the McDonald's case appears to have expanded the potential for Caremark liability beyond the parameters that many legal analysts had understood to apply, finding that maintaining workplace safety is a mission-critical risk for companies but also reinforcing the high bar for that liability, say attorneys at Fried Frank.

• Memo Shows NLRB Intends To Protect Race Talk At Work

  

  A newly released memo from the National Labor Relations Board advising that discussions of racism at work count as protected concerted activity should alert employers that worker retaliation claims may now face serious scrutiny not only from the U.S. Equal Employment Opportunity Commission, but also the NLRB, says Mark Fijman at Phelps Dunbar.

• Evaluating Workplace Accommodations For Service Animals

  

  In Bennett v. Hurley Medical Center, a Michigan federal court ruled in favor of the hospital after a nursing intern filed a disability discrimination lawsuit regarding her service dog, highlighting the importance of engaging in interactive processes and individualized actions in workplace accommodation decisions, say Keith Anderson and Anne Yuengert at Bradley Arant.

• Breaking Down Maryland's Adult-Use Cannabis Bill

  

  Maryland voters approved adult-use cannabis in November and state lawmakers have recently introduced a bill to create a regulatory framework for its cultivation, production and sale, but questions remain on blackout periods for licensees, vertical integration, a lack of protection for off-the-job marijuana use and more, say attorneys at Fox Rothschild.

• Financial Institutions And A New Era Of Fair Hiring Initiatives

  

  There's a greater opportunity for hiring employees with certain criminal convictions under the new Fair Hiring in Banking Act, but covered financial institutions still need to consider the variety of federal, state and local laws affecting the landscape when it comes to navigating fair chance initiatives, says Susan Corcoran at Jackson Lewis.

• COVID's Impact On Employment Law Is Still Felt 3 Years Later

  

  Since COVID-19's onset in the U.S. three years ago, almost every existing aspect of employment law has been shaped by pandemic-induced changes, including accommodation requests under the Americans with Disabilities Act, remote work policies and employer vaccine mandates, say Scott Allen and M.C. Cravatta at Foley & Lardner.

• Where A Textual Reading Of Title VII Could Lead Justices

  

  If the U.S. Supreme Court decides to review Title VII’s objective harm standard in two cases with pending petitions, a strict adherence to the statute’s text will lead the court to stick with a model that allows analysis to focus on the empirical, rather than defining fuzzy semantic boundaries, say Stephen Fink and Bryan Neal at Holland & Knight.

• How Employers Can Defend Against Claims Made In Bad Faith

  Excerpt from Practical Guidance

  

  When an employer becomes aware of an employee complaint, it should carefully research whether the claim could be characterized as frivolous or in bad faith, and then consider various defense strategies, say Ellen Holloman and Jaclyn Hall at Cadwalader.

• Anticipating What ChatGPT Means For The Workplace

  

  As the enormously popular artificial intelligence chatbot ChatGPT finds applications in the workplace, companies should begin considering how the new tool may expose them to hiring bias, intellectual property risks and misinformation in work products, say Christopher Deubert and Amanda Novak at Constangy.

• 10 Evolving AI Compliance Considerations For Employers

  

  As state and local laws affecting use of artificial intelligence tools in the employment lifecycle take effect this year, employers must keep several things in mind, including the U.S. Equal Employment Opportunity Commission's growing enforcement efforts in AI, say Cassandra Gaedt-Sheckter and Emily Lamm at Gibson Dunn.

• Don't Assume AI Is Smart Enough To Avoid Unintended Bias

  

  As companies increasingly incorporate artificial intelligence decision models into their business practices, they should consider using statistical and qualitative analyses to evaluate and reduce inadvertent discrimination, or disparate impact, induced by AI, say Christine Polek and Shastri Sandy at The Brattle Group.