Discrimination

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A recent Supreme Court decision clarified that discrimination claims brought by members of majority groups in so-called “reverse discrimination” cases cannot be subject to a heightened evidentiary burden. In Ames v. Ohio Department of Youth Services, the Court ruled that a Sixth Circuit requirement that members of a “majority group” (such as heterosexual employees) must satisfy a heightened evidentiary standard for discrimination claims was incompatible with the language of Title VII and with Supreme Court precedent. The unanimous decision written by Judge Ketanji Brown Jackson resolves a circuit split, as the Sixth, Seventh, Eighth, Tenth, and D.C. circuit courts of appeals had previously imposed a higher evidentiary burden on discrimination claims brought by majority group members.

Labor + Employment Workforce Watch is a guide to the employment law developments most likely to impact your business. The Troutman Pepper Locke Labor + Employment Team represents employers in the most sensitive workplace matters, enabling our clients to concentrate on their core business operations. Our team is adept at handling and managing labor and employment issues on national, international, and local levels. Recognized as a leading law firm by Chambers USA, our attorneys provide comprehensive advice on every type of employment issue a company may encounter, at every stage of the employment life cycle.

On Tuesday, President Trump radically changed the legal landscape for federal contractors when he revoked an executive order that had been in effect for nearly 60 years. Executive Order 11246, issued by President Johnson in 1965, prohibited federal contractors and subcontractors from discriminating against employees and applicants on the basis of their race, color, religion, sex, or national origin. It also required federal contractors to take affirmative action to employ and advance in employment qualified women and minorities. Trump issued an order on January 21 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which revokes Executive Order 11246 and related executive orders (including one that added sexual orientation and gender identity to the list of protected classes). This action will significantly impact federal contractors and subcontractors, who will be relieved of some (but not all) of their obligations under the federal contract compliance programs.

Q. Is there a new standard in New Jersey for disparate impact discrimination?

A. The New Jersey Division on Civil Rights recently proposed new rules revising the legal standard for disparate impact discrimination and outlining the burdens of proof required under the New Jersey Law Against Discrimination. In addition to outlining a new standard for disparate impact discrimination in employment, the rules also include updated standards and guidance for housing, housing financial assistance, public accommodations, and contracting sectors.

Q: I heard New York amended the law on nondisclosure provisions in employee settlement agreements. What do I need to know?

A: New York has long imposed burdensome requirements on employers who want to include confidentiality provisions in settlement agreements resolving claims of discrimination, harassment, or retaliation. New York recently amended those requirements, effective November 17. While the amendments lessen the burden on employers in one respect, they increase the burden in several other respects. Violation of the new requirements will result in the invalidation of the employee’s release. As such, it is critical for employers to understand and comply with these new requirements.

Q: I heard New York City is adding height and weight as protected categories. What does that mean for employers?

A: Effective November 22, height and weight will be added as protected categories under the New York City Human Rights Law. Employers will be prohibited from discriminating against applicants or employees based on their height or weight. There are no definitions for height or weight, meaning these categories are like race or religion, and all ranges of height and weight are protected.

Most companies know that they can’t demote or fire an employee because of their race or religion. But how can companies avoid making decisions based on unconscious bias? Partners Tracey Diamond and Evan Gibbs sat down with CyberRisk Alliance VP of People Ying Wong to talk about the popular Netflix show Partner Track, workplace diversity, and unconscious bias.

Q. Have there been any updates since the federal court previously determined that the employer did not violate Title VII in prohibiting employees from wearing Black Lives Matter and other social justice attire to work?

A. Yes. In a prior blog post, we discussed companies taking various approaches toward employees wearing Black Lives Matter (BLM) attire to work during the pandemic. Some employers permitted such attire at work, while others did not. We also discussed a federal district court decision that addressed a novel issue — whether a claim under Title VII of the 1964 Civil Rights Act premised entirely on wearing BLM attire is legally cognizable.

Q. How do I fight antisemitism in the workplace?

A. The recent headlines involving Ye, Kyrie Irving, Dave Chappelle, and others are just the latest in a string of highly disturbing antisemitic statements and incidents. In 2021, the Anti-Defamation League (ADL) recorded 2,717 antisemitic incidents throughout the United States — a 34% increase from 2020 and the highest number on record since ADL first began tracking antisemitic occurrences in 1979. As many as 1,496 antisemitic acts have been reported in this calendar year alone, ranging from the distribution of antisemitic propaganda to physical attacks against Jewish individuals to bomb threats.