Employment

On June 5, 2025, the U.S. Supreme Court altered the landscape for employers facing “reverse discrimination” Title VII lawsuits in the Sixth, Seventh, Eighth, Tenth, and DC Circuits, by striking down a rule that had required plaintiffs from “majority groups” to allege additional “background circumstances” to state a prima facie case of employment discrimination.  Examples of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” included statistical data that the employer had engaged in a pattern of discrimination against majority groups or a member of the relevant minority group made the employment decision that allegedly harmed the member of the majority group.   In the other circuits, no such additional pleading requirement was required in reverse discrimination lawsuits.  Justice Jackson authored the Court’s 9-0 opinion, Ames v. Ohio Dept. of Youth Servs., No. 23-1039, and Justice Thomas filed a concurring opinion, joined by Justice Gorsuch.Continue Reading Supreme Court Holds That All Employment Discrimination is Equal: Ames v. Ohio Dept. of Youth Servs.

On May 19, 2025, Deputy Attorney General Todd Blanche issued a memorandum establishing a DOJ Civil Rights Fraud Initiative.  The Initiative will use the False Claims Act (“FCA”) to “investigate and . . . pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws.”  Educational institutions, federal contractors, grantees, and other entities that receive federal funding should take note of the latest FCA Initiative.  Similar FCA initiatives, such as those focused on collusion and cybersecurity fraud, have resulted in significant related FCA enforcement.Continue Reading Justice Department Establishes Civil Rights Fraud Initiative, Using False Claims Act to Target DEI

On January 21, 2025, President Trump issued Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“EO 14173”), which, among other things, revoked Executive Order 11246 (“EO 11246”), a 60-year-old Civil Rights-era directive that prohibited federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin and required federal contractors to take affirmative action to provide equal opportunity in employment. Continue Reading The Executive Order 11246 Grace Period Ends Today (April 21)

            On April 3, 2025, 10 former Equal Employment Opportunity Commission (“EEOC”) officials, including former commissioners, general counsel, and Chairs Charlotte A. Burrows and Jenny R. Yang, issued a public letter responding to the recent EEOC technical assistance document, “What You Should Know About DEI-Related Discrimination at Work,” which we described in a previous blog post.  The public letter, “Statement of Former Equal Employment Opportunity Commission (EEOC) Officials on Employer Diversity, Equity, and Inclusion Efforts,” refers to the technical assistance document as the “Acting Chair’s document” since that document was issued by Acting Chair Lucas without a Commission vote and thus represents Lucas’s views. Continue Reading Former EEOC Officials Respond to EEOC Technical Assistance Document “What You Should Know About DEI-Related Discrimination at Work”

The German Federal Labor Court (Bundesarbeitsgericht – BAG) has issued two new decisions impacting virtual stock option plans (VSOPs).  In a March 19, 2025 decision (BAG, March 19, 2025 – 10 AZR 67/24), BAG ruled that virtual stock options (“phantom shares”) are not speculative options/opportunities, but rather part of the remuneration already earned and, therefore, forfeiture clauses in VSOPs are invalid.  The new decision is a reversal of the court’s prior position on these virtual shares.  In the other new decision, issued on March 27, 2025 (BAG, March 27, 2025 – 8 AZR 63/24), BAG ruled that phantom shares exercised while an employee is still employed have to be considered when calculating the compensation owed for the employee’s compliance with a post-contractual non-compete covenant.  Below is an overview of the new cases and steps employers can take to ensure their plans are in compliance.Continue Reading German Federal Labor Court Rules on Phantom Shares; What Employers Need to Know

On March 29, United States embassies across Europe began sending letters and an accompanying “Certification regarding compliance with applicable federal anti-discrimination law” to companies in Belgium, Bulgaria, Denmark, France, Italy, Luxembourg, and Spain.  This certification purports to apply Executive Order (“EO”) 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) to U.S. government suppliers and contractors based in Europe “regardless of their nationality and the country in which they operate.”  As we wrote in a prior alert, the Trump administration intends for EO 14173 to end what it considers to be “illegal preferences and discrimination” including those “under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA)” programs by prescribing required provisions for federal contracts. Continue Reading European Companies Wrestle with U.S. Government’s Anti-DEI Push

On March 19, 2025, the Equal Employment Opportunity Commission (“EEOC”) released two “technical assistance” documents titled, “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work” (“technical assistance”).  The technical assistance follows President Trump’s issuance of Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) on January 21, 2025, in which the president called for “ending illegal discrimination and preferences, including DEI” in the private sector.  The EEOC and Department of Justice announced in a press release that the purpose of the technical assistance is “to help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices—including those labeled or framed as ‘DEI.’”Continue Reading EEOC Technical Assistance: “What You Should Know About DEI-Related Discrimination at Work”

As explained in a prior blog post, on January 21, 2025, President Trump signed Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) (the “EO”), establishing new requirements for federal contractors and grant recipients to agree that their compliance with federal anti-discrimination laws is “material to the government’s payment decisions” for purposes of the False Claims Act (“FCA”) and to certify that they do not operate any “programs promoting DEI that violate any applicable Federal anti-discrimination laws.”  On February 21, a federal judge in the District of Maryland granted a preliminary injunction to block these and other portions of the EO, including potential FCA enforcement actions based on the certification provision, as well as a provision of Executive Order 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”).Continue Reading Federal Appeals Court Reinstates Provisions of DEI Executive Orders

On January 21, 2025, President Trump issued the Ending Illegal Discrimination and Restoring Merit-Based Opportunity Executive Order (the “EO”), which revokes Executive Order 11246, a 60-year-old Civil Rights-era directive that prohibited federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and required federal contractors to take affirmative action to provide equal opportunity in employment. The EO seeks to “end[] illegal preferences and discrimination” and “promote individual initiative, excellence, and hard work” by ending the use of “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA)” programs. The EO does so by prescribing required contract provisions for federal contracts and by requiring specific reports from the heads of federal agencies, including identification of private entities for potential investigation, as described further below. The provisions of the EO do not apply to federal or private sector employment and contracting preferences for veterans. Federal contractors and grant recipients have until April 21, 2025 to comply with the EO’s revocation of affirmative action requirements. However, federal contractors, subcontractors, and grant recipients may become subject to the new contract provision requirements imposed by the EO without delay.1Continue Reading President Trump’s “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Executive Order Targets Federal Contractors and the Private Sector

Five states have joined the growing number of states with pay transparency laws requiring employers to include compensation information in job postings.  An Illinois law and a Minnesota law took effect on January 1, 2025, and New Jersey, Vermont, and Massachusetts laws will take effect later this year.  While the new laws differ in their specific requirements, they generally mirror pay transparency statutes passed in recent years in other states, including California, Colorado, and New York, that require employers to disclose pay ranges, and sometimes benefits information and other compensation, in job postings.  Continue Reading New Pay Transparency Laws Effective in 2025