Expert Analysis

• Advising Employers As AI Meets DEI And Discrimination

  Excerpt from Practical Guidance

  

  Though companies can use artificial intelligence tools to develop more diverse and inclusive workforces, counsel should also prepare employers for how AI can stymie these efforts, provoke discrimination claims and complicate resulting litigation, says Emily Schifter at Troutman Pepper.

• A Look At The Hefty Demands In Calif. Employer AI Draft Regs

  

  California's draft regulations on artificial intelligence use in employment decisions show that the California Privacy Protection Agency is positioning itself as a de facto AI regulator for the state, which isn't waiting around for federal legislation, says Lily Li at Metaverse Law.

• Federal Salary History Ban's Reach Is Limited

  

  Though a newly effective Office of Personnel Management rule takes important steps by banning federal employers from considering job applicants' nonfederal salary histories, the rule's narrow applicability and overconfidence in the existing system's fairness will likely not end persistent pay inequities, says Margaret House at Kalijarvi Chuzi.

• 2nd Circ. Hostile Workplace Ruling Widens Arbitration Pitfalls

  

  The Second Circuit’s recent decision, affirming the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applies to a worker whose workplace hostility claims arose before the law’s 2022 enactment, widens the scope of the law — and the risks of unenforceable arbitration agreements for employers, say attorneys at Hinshaw.

• Title VII Compliance Lessons From Raytheon Age Bias Suit

  

  A Texas federal court’s recent refusal to dismiss age discrimination claims from a former Raytheon employee, terminated after he admitted to acts that Raytheon says violated its harassment policy, nonetheless illustrates strategies employers can use to protect themselves when facing competing Title VII workplace obligations, say attorneys at Segal McCambridge.

• How The Presidential Election Will Affect Workplace AI Regs

  

  The U.S. has so far adopted a light-handed approach to regulating artificial intelligence in the labor and employment area, but the presidential election is unlikely to have as dramatic of an effect on AI regulations as it may on other labor and employment matters, say attorneys at Littler.

• Eye On Compliance: ADA Accommodations For Obesity

  

  As the classification of "obesity" as a disability under the Americans with Disabilities Act continues to evolve, employers should note federal district and state court deviations from U.S. Equal Employment Opportunity Commission guidelines, which have deemed obesity to be a qualifying impairment, no matter the cause, says Lauren Stadler at Wilson Elser.

• 3rd. Circ. Ruling Shows Employers Where To Put ADA Focus

  

  A recent Third Circuit decision in Morgan v. Allison Crane & Rigging, confirming that the Americans with Disabilities Act protects some temporarily impaired employees, reminds employers to pursue compliance through uniform policies that head off discriminatory decisions, not after-the-fact debates over an individual's disability status, says Joseph McGuire at Freeman Mathis.

• 11th Circ. Ruling Offers Refresher On 'Sex-Plus' Bias Claims

  

  While the Eleventh Circuit’s recent ruling in McCreight v. AuburnBank dismissed former employees’ sex-plus-age discrimination claims, the opinion reminds employers to ensure that workplace policies and practices do not treat a subgroup of employees of one sex differently than the same subgroup of another sex, say attorneys at Bradley Arant.

• Employment Verification Poses Unique Risks For Staffing Cos.

  

  All employers face employee verification issues, but a survey of recent settlements with the U.S. Department of Justice's Immigrant and Employee Rights Section suggests that staffing companies' unique circumstances raise the chances they will be investigated and face substantial fines, says Eileen Scofield at Alston & Bird.

• What To Expect As Worker Bias Suit Heads To High Court

  

  The U.S. Supreme Court is set to hear Ames v. Ohio Department of Youth Services, which concerns how courts treat discrimination claims brought by majority group plaintiffs, and its decision could eliminate the background circumstances test, but is unlikely to significantly affect employers' diversity programs, say Victoria Slade and Alysa Mo at Davis Wright.

• Mitigating Construction Employers' Risks Of Discrimination

  

  Recent heightened government scrutiny of construction industry employment practices illustrates the need for nondiscriminatory recruitment and proactive assessment of workforces and worksites, including auditing for demographic disparities and taking documented steps to address such issues, say attorneys at Seyfarth.

• Cos. Should Focus On State AI Laws Despite New DOL Site

  

  Because a new U.S. Department of Labor-sponsored website about the disability discrimination risks of AI hiring tools mostly echoes old guidance, employers should focus on complying with the state and local AI workplace laws springing up where Congress and federal regulators have yet to act, say attorneys at Littler.