June 2023

Q: Can sexually graphic, misogynistic music played in the workplace be considered sexual harassment even if it is not directed at a particular employee and found offensive by employees of both sexes?

A: Yes. On February 9, the Ninth Circuit Court of Appeals concluded in the case of Sharp v. S.S. Activewear that sexually explicit, misogynistic music broadcasted throughout the workplace can constitute sex-based harassment in violation of Title VII.

Do companies that use workplace surveillance tools to make hiring and firing decisions risk violating the Fair Credit Reporting Act (FCRA)? According to the Consumer Financial Protection Bureau (CFPB or Bureau) in a recent comment, the answer to that question is yes. The Bureau’s official comment comes in response to a request for information issued by the White House’s Office of Science and Technology Policy on the impact of automated tools used by employers to monitor and evaluate workers. The CFPB’s position that the FCRA applies to automated worker surveillance tools is consistent with the Bureau’s March 2023 request for information on data brokers, discussed here, to determine whether the FCRA applies to modern data surveillance practices.

What does your management style say about you? Do you demand perfection from your team? Is perfectionism a double-edged sword? Partners Tracey Diamond and Evan Gibbs sit down with Elise Holtzman, founder of The Lawyer’s Edge, to talk about the classic movie, The Devil Wears Prada, and the difference between pursuing perfectionism and pursuing excellence.

Q. Has the U.S. Equal Employment Opportunity Commission (EEOC) issued any recent guidance regarding employers’ use of artificial intelligence (AI)?

A. Yes. On May 18, the EEOC released new guidelines, explaining how employers’ use of AI could trigger a federal employment law violation. This development makes the government’s position clear: Employers using AI in the workplace run the risk of violating antidiscrimination law — specifically, Title VII of the Civil Rights Act of 1964.

Sometimes it’s not what you say, but how you say it. What’s the best approach to managing and getting the most out of your employees? Are there gender and generational challenges to administering performance management effectively?  Is communication and training the answer? Partners Tracey Diamond and Evan Gibbs sat down with Laura Yehuda, a Principal with Ernst & Young LLP’s People Advisory Services, to talk about the popular TV show, The Bear, hoagies versus subs, and best practices when delivering performance messages.