Insights

September 02, 2022
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Category: Agency Enforcement

Ruling by Seventh Circuit in EEOC v. Walmart Clarifies Burden of Proof Under Young

The U.S. Court of Appeals for the Seventh Circuit has ruled that the Equal Employment Opportunity Commission (EEOC) failed to prove that an employer engaged in unlawful pregnancy discrimination when it offered temporary light duty assignments exclusively to employees injured on the job but did not do so for employees who experienced pregnancy-related job restrictions. The ruling by the appeals...
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September 02, 2022
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Category: Policies and Practices

Soliciting Non-Binary Gender Self-ID Data: What’s the Latest?

We continue to receive calls from employers regarding whether they are required to revise their self-identification forms to collect non-binary gender data from their applicants and employees, and if not, whether and how they should be preparing to do so in the event it becomes a mandatory requirement. Importantly, there is no current obligation imposed by either the Labor Department’s...
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August 26, 2022
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Category: Agency Enforcement

Contractors Have Until September 19 To Object to OFCCP Disclosure of Type 2 EEO-1 Data

In response to a Freedom of Information Act (FOIA) request received by the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) that seeks the release of thousands of federal contractors’ and subcontractors’ consolidated EEO-1 Reports filed during calendar years 2016 – 2020, the agency has announced that it will release the requested information unless a contractor files a written...
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August 26, 2022
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Category: Whistleblowing and Retaliation

Second Circuit’s Burden of Proof Ruling in SOX Whistleblower Case Creates Circuit Split

The U.S. Court of Appeals for the Second Circuit recently overturned a jury’s award of $900,000 to a former employee who claimed, in a case brought under the federal Sarbanes-Oxley Act (SOX), that he was unlawfully retaliated against for blowing the whistle on his former employer’s alleged securities violations. According to the appeals court, the trial judge gave the jury...
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August 26, 2022
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Category: Agency Enforcement

OFCCP Revises Controversial “Pay Equity Audits” Directive

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has revised the controversial Pay Equity Audits directive issued earlier this year to clarify that the agency “will not require the production of privileged attorney-client communications or attorney work product.” As we reported back in March when it was issued, the original directive instructed OFCCP compliance officers (COs) to...
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August 26, 2022
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Category: Agency Enforcement

Fourth Circuit Rules Gender Dysphoria Is a Covered ADA Disability

In a case of first impression before the federal appeals courts, the U.S. Court of Appeals for the Fourth Circuit has ruled that gender dysphoria can be a disability under the Americans with Disabilities Act (ADA). Gender dysphoria, as discussed in more detail below, is defined as clinically significant distress experienced by transgender individuals. While the ADA expressly excludes “gender...
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August 26, 2022
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Category: Immigration

USCIS Proposes Rule To Continue Remote I-9 Document Verification

In a positive response to written comments received by the agency, although short of what we would prefer, U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule that would formalize the agency’s authority to implement “alternative options,” i.e., remote review options, for employers to use when verifying an employee’s identity or work authorization documentation on the Employment Eligibility...
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August 19, 2022
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Category: Agency Enforcement

D.C. Circuit Issues Important Decision on Federal Rulemaking

A recent decision by a split three-judge panel of the influential U.S. Court of Appeals for the D.C. Circuit has potentially significant implications for federal rulemaking subject to the Administrative Procedure Act (APA), and in particular during the transition of presidential administrations from one political party to the other. Ruling in the case of Humane Society v. Department of Agriculture,...
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August 19, 2022
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Category: Affirmative Action and Diversity

FAQs on Affirmative Action Placement Goals

It comes as no surprise to many of you that there can be challenges in trying to balance the dual interests within your organizations of (1) complying with the nondiscrimination and affirmative action requirements arising under Title VII of the Civil Rights Act of 1964 (Title VII), Executive Order (E.O.) 11246, and a variety of other federal and state laws;...
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August 19, 2022
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Category: Agency Enforcement

$85 Million Settlement Underscores DOJ’s Focus on Anticompetitive Employment Practices

A massive $85 million settlement in a wage fixing case in the poultry industry is the latest evidence that the U.S. Department of Justice (DOJ) continues to focus antitrust enforcement efforts on anticompetitive employment practices. At the same time, DOJ’s strategy as to how to pursue these cases still appears to be evolving, as evidenced by a recent brief DOJ...
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