Discrimination

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On Thursday, June 5, 2025, the U.S. Supreme Court unanimously vacated a Sixth Circuit Court of Appeals decision, which held that plaintiffs claiming anti-heterosexual workplace discrimination must provide extra evidence related to “background circumstances,” because it improperly imposed higher standards on majority-group plaintiffs alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII).

In Ames v. State of Ohio Department of Youth Services, a former Ohio Department of Youth Services employee alleged that she was denied a promotion in favor of a lesbian woman before being demoted and replaced by a gay man, who were both allegedly less qualified than she was. The employee then brought claims under Title VII. When the State of Ohio Department of Youth Services moved for summary judgment, the U.S. District Court for Southern District of Ohio dismissed these claims on the grounds that the employee did not present sufficient evidence to show “‘background circumstances support[ing] the suspicion that the defendant is that unusual employer who discriminates against the majority’ to establish the first prong of the prima facie case.”Continue Reading Justices reject higher standard for majority-group plaintiffs asserting Title VII claims

California is one step closer to becoming one of the first states to adopt anti-discrimination regulations regarding employer use of automated-decision technology to make employment-related decisions.

Since May 2024 the California Civil Rights Council (CRC), a branch of the Civil Rights Department, has made multiple revisions to California’s employment discrimination regulations to address employers’ use of artificial intelligence (AI) automated-decision systems to make employment-related decisions such as hiring, promotion, pay and benefits. The purpose of the proposed regulations is to affirm that California’s anti-discrimination laws protect employees and candidates from discrimination caused by the use of automated systems, and to define circumstances in which the use of automated systems can result in unlawful discrimination. The proposed regulations also address the use of automated systems for background checks and medical or psychological inquiries, and how that use can violate anti-discrimination laws. Additionally, the proposed regulations impose recordkeeping requirements that obligate employers to retain records that may relate to or disclose the employer’s use of automated systems to make employment decisions, including applications, personnel records, membership records, employment referral records, selection criteria, and automated-decision system data.Continue Reading California Civil Rights Council makes final revisions to regulations that address use of AI systems in employment-related decision-making

In our prior post, we reported that on February 21, 2025, a Maryland federal judge had issued a nationwide preliminary injunction temporarily blocking the key provisions of President Trump’s DEI-related Executive Orders (EOs). That judge later refused to stay the preliminary injunction, despite the Trump administration’s request, and clarified that the preliminary injunction applied to all federal agencies, not only those named as defendants in the lawsuit.Continue Reading UPDATE: Fourth Circuit reinstates DEI executive orders pending appeal

In the early days of his second term, President Trump issued a series of executive orders (EO) that were aimed at reshaping the landscape of both federal and private sector policies. Two specifically targeted diversity, equity, and inclusion (DEI) initiatives:

  1. EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” directs the termination of all DEI-related mandates, policies, programs, preferences, and activities within federal agencies. It further calls for the termination of “equity-related” grants or contracts and requires agencies to report all employees in DEI positions to the Office of Management and Budget.
  2. EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” impacts the private sector, directing the attorney general to develop a strategic enforcement plan, identifying key private entities for civil rights investigations, recommending regulatory actions, and proposing potential litigation to curb DEI practices deemed discriminatory under the Trump administration’s interpretation of federal law. It also requires federal contractors and grant recipients to eliminate DEI programs that involve race- or sex-based preferences and certify that they do not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws as a condition of receiving government funding.

Continue Reading Court clarifies that DEI executive orders are temporarily blocked for all federal agencies

On September 27, 2024, California Governor Gavin Newsom signed Senate Bill (SB) 1137 into law, clarifying that discrimination can happen based on an intersection or combination of protected characteristics. Specifically, SB 1137 amended the Unruh Civil Rights Act, the Education Code, and the Fair Employment and Housing Act (FEHA) to extend protection against discrimination by including the concept of “intersectionality”.

Back in February 2024, California State Senator Lola Smallwood-Cuevas introduced SB 1137, which aimed to make California the first state to explicitly recognize “intersectionality” in anti-discrimination laws. Smallwood-Cuevas notes in her April 15, 2024, press release that “[d]iscrimination transcends singular dimensions”, and that SB 1137 “is common-sense reform that addresses the intersectionality of discrimination cases, providing greater protections for Californians, especially those from our most marginalized communities of color.”Continue Reading California adopts intersectionality into anti-discrimination laws

Since Pennsylvania legalized medical marijuana in 2016, employers navigated the murky waters of drug testing applicants and employees who hold medical marijuana cards amid a lack of clarity in the law regarding these issues.

On September 24, 2024, a new law went into effect in the City of Pittsburgh that provides a guiding beacon for employers in this area. The law protects individuals holding medical marijuana cards from employment discrimination in the workplace based on their cannabis use for medically approved purposes. In other words, the law makes medical marijuana cardholders a protected class under local law.Continue Reading Rolling out new rights: Pittsburgh’s bold move on medical marijuana in the workplace

In July of this year, a Texas federal district court judge denied the state of Texas’ request to vacate the Equal Employment Opportunity Commission’s (EEOC) most recent guidance relating to gender identity discrimination. In doing so, the federal court held that the state could not bring the challenge in a previously filed lawsuit regarding prior EEOC guidance but, instead, must file a new lawsuit.

The state of Texas first took issue with the EEOC’s 2021 guidance, which required bathroom, dress code, and pronoun accommodations for employees based on gender identity. Texas filed suit against the EEOC in the United States District Court for the Northern District of Texas, requesting the court vacate the 2021 guidance (2021 Lawsuit). On October 1, 2022, the court vacated the 2021 guidance and issued a declaratory judgment that the guidance was unlawful on several grounds, holding that it: (1) was contrary to law because Title VII, even after the Supreme Court’s decision in Bostock v. Clayton County, does not require employers to provide accommodations regarding bathrooms, dress codes, or pronoun usage based on gender identity; and (2) unlawfully extended Bostock’s “non-discrimination holding” beyond statutory limits imposed by Congress. The EEOC did not appeal the district court’s judgment.Continue Reading Federal judge requires state of Texas to file new lawsuit to challenge recent EEOC guidance on gender identity discrimination

As the use of artificial intelligence (AI) systems rapidly spreads throughout society, legislators across the U.S. are hustling to try and ensure that these systems are created and implemented in a safe and fair manner everywhere they are being used. The workplace is one such area that is starting to gain interest in this regard.

Legislators have begun considering, and in a few cases even passed, bills aimed at preventing so-called “algorithmic discrimination” in the workplace. This refers to biased outcomes that can happen when employers use AI systems, or “automated decision tools” (ADTs), as a substantial factor in making consequential decisions such as whether to hire, promote, or discipline. According to the White House, “Algorithmic discrimination occurs when automated systems contribute to unjustified different treatment or impacts disfavoring people based on their race, color, ethnicity, sex (including pregnancy, childbirth, and related medical conditions, gender identity, intersex status, and sexual orientation), religion, age, national origin, disability, veteran status, genetic information, or any other classification protected by law.”

We will summarize the status, applicability, and provisions of various U.S. state- and local-level bills proposing to regulate algorithmic discrimination that are actively pending or passed as of the date of this article’s publication below.Continue Reading Employers beware: AI-based workplace discrimination laws are coming to the U.S.

On Monday, June 3, 2024, Attorney General Platkin and Director Sundeep Iyer of the New Jersey Division on Civil Rights (DCR) proposed a new rule (N.J.A.C. 13:16) that would clarify the legal standard and the burdens of proof for claims of disparate impact discrimination under the New Jersey Law Against Discrimination (LAD). 

The standard does not change the legal framework already applied by the courts in the employment context under the LAD, but this would resolve any question about the viability of a disparate impact claim and/or the framework to be applied.

Disparate impact discrimination occurs when a policy or practice that is neutral on its face has a disproportionately negative effect on members of a protected class. Such a policy is unlawful unless the policy or practice is “necessary to achieve a substantial, legitimate, non-discriminatory interest” and there is no “equally effective alternative that would achieve the same interest.”Continue Reading Attorney General and DCR proposes rule to clarify disparate impact discrimination under the New Jersey Law Against Discrimination

The New Jersey Supreme Court’s recent ruling in Savage v. Township of Neptune, places limits on the enforceability of non-disparagement clauses in settlement agreements. The court unanimously held that such clauses are unenforceable if they prevent employees from discussing details related to claims of discrimination, retaliation, or harassment, aligning with protections under the New Jersey Law Against Discrimination (LAD).

Christine Savage, a former police sergeant, filed a lawsuit in December 2013 against the Neptune Township Police Department, alleging sexual harassment, sex discrimination, and retaliation. The parties entered into a settlement agreement which included a non-disparagement clause. In 2016, Savage filed another lawsuit against the same defendants, claiming they continued their discriminatory and retaliatory conduct. This second lawsuit was settled in July 2020, also with a non-disparagement clause in which both parties agreed not to“make any statements … regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”Continue Reading New Jersey Supreme Court limits use of non-disparagement provisions in New Jersey LAD settlements