On May 26, 2023, New York City Mayor Eric Adams signed into law an amendment to the New York City Human Rights Law (NYCHRL) that bans employment discrimination on the basis of an individual’s height and/or weight. The amendment thus further expands the comprehensive list of characteristics already protected under the NYCHRL. The law will become effective November 22, 2023.
On August 21, 2023, the California Supreme Court held in Raines v. U.S. Healthworks Medical Group that a business entity acting as an employer’s agent can be held directly liable under California’s Fair Employment and Housing Act (FEHA) for claims of employment discrimination.
The Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022, went into effect on June 27, 2023. The EEOC has started to accept PWFA charges and has issued guidance and resources to help employers comply with the expanded requirements. On August 11, 2023, the EEOC also published a Proposed Rule to implement the PWFA, which outlines the agency’s interpretation of the PWFA, and includes specific examples of possible reasonable accommodations. Public comments concerning the Proposed Rule can be submitted until October 10, 2023.
Last week, the Fifth Circuit Court of Appeals upended longstanding, employer-friendly precedent in cases brought under Title VII of the Civil Rights Act. For decades, an employment discrimination plaintiff in the Fifth Circuit had to demonstrate the “adverse employment action” forming the basis of their complaint constituted an “ultimate employment decision”—which the Court of Appeals effectively limited to hiring, firing, promotion, or compensation. No longer. In a move sure to surprise some, the traditionally employer-friendly Court broadened the scope of cognizable discrimination claims in the Fifth Circuit.
Illinois is the latest in a growing trend among states and cities throughout the country to enact salary transparency laws. Illinois joins the ranks of California, Washington and Colorado, among others, requiring employers to disclose pay scale and benefits in job postings. On August 11, 2023, Governor J.B. Pritzker signed House Bill 3129 into law. Like its California, Washington and Colorado counterparts, the Illinois law is rooted in historic pay inequity among marginalized groups. The law amends Illinois’ Equal Pay Act and, beginning January 1, 2025, requires employers with 15 or more employees to disclose pay scales and benefits in job postings, as well as retain records of compliance with the amended law.
Continue Reading Illinois is the Latest State to Enact a Salary Transparency Law
Employers’ burgeoning use and reliance upon artificial intelligence has paved the way for an increasing number of states to implement legislation governing its use in employment decisions. Illinois enacted first-of-its-kind legislation regulating the use of artificial intelligence in 2020, and as previously discussed, New York City just recently enacted its own law. In 2023 alone, Massachusetts, Vermont and Washington, D.C. also have proposed legislation on this topic. These legislative guardrails are emblematic of our collective growing use of artificial intelligence, underscore the importance of understanding the legal issues this proliferating technology implicates, and need to keep abreast of the rapidly evolving legislative landscape. Below is a high-level summary of AI-related state legislation and proposals of which employers should be aware.
On August 1, 2023, the Department of Homeland Security (“DHS”) released a new Form I-9. The previous one was issued in 2019 and expires on October 31, 2023.
At the end of June, the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows Of Harvard College, Nos. 20-1199 & 21-707, 2023 WL 4239254 (U.S. June 29, 2023), outlawed race-based affirmative action in higher education. Splitting along ideological lines, the Court’s conservative supermajority ruled, 6-3, the college admissions programs of Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. The monumental decision, which dispensed with 45 years of precedent allowing race-conscious admission policies to achieve a diverse student body, has upended the world of higher education.
Continue Reading What Does Affirmative Action’s Death Knell Mean for Employers?
On June 29, 2023, the U.S. Supreme Court issued a rare unanimous ruling in Groff v. DeJoy, and set a higher standard for employers to meet when denying religious accommodations under Title VII of the Civil Rights Act of 1964 (“Title VII”). Prior to Groff, employers were free to deny a religious accommodation where it imposed “more than a de minimis cost” on the employer’s business. Following Groff, however, employers must now show that the burden of granting a religious accommodation “would result in substantial increased costs in relation to the conduct of its particular business.” This case has implications for all employers evaluating employee requests for religious accommodations, and should be carefully considered when granting or denying such requests.
Continue Reading Supreme Court Raises the Bar for Title VII Religious Accommodations
As we previously reported, the Equal Employment Opportunity Commission (“EEOC”) has had on its radar potential harms that may result from the use of artificial intelligence technology (“AI”) in the workplace. While some jurisdictions have already enacted requirements and restrictions on the use of AI decision making tools in employee selection methods,[1] on May 18, 2023, the EEOC updated its guidance on the use of AI for employment-related decisions, issuing a technical assistance document titled “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964” (“Updated Guidance”). The Updated Guidance comes almost a year after the EEOC published related guidance explaining how employers’ use of algorithmic decision-making tools may violate the Americans with Disabilities Act (“ADA”). The Updated Guidance instead focuses on how the use of AI may implicate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin. Particularly, the EEOC focuses on the disparate impact AI may have on “selection procedures” for hiring, firing, and promoting.
On April 6, 2023, the New York City Department of Consumer and Workforce Protection (“DCWP”) promulgated its final regulations (the “Final Regulations”) regarding the New York City Automated Employment Decision Tools Law (“AEDTL”). In connection with the Final Regulations, the DCWP also notified employers that it would further delay enforcement of the AEDTL from April 15, 2023 to July 5, 2023. The Final Regulations, among other things, expand the definition of “machine learning, statistical modeling, data analytics, or artificial intelligence” as used in the AEDTL and clarify specifics around the bias audits required by the AEDTL.