Discrimination & Retaliation

President Biden did not waste any time after taking office on January 20, 2021. Shortly after the Presidential Oath of Office was administered, Biden signed 17 executive actions, which either impact the workplace or provide insight into what may be forthcoming under the new administration for employers.

A Flurry of Executive Orders on Day One

Biden issued a memorandum to agencies to freeze all last-minute regulations put in motion by the prior administration as President Trump was leaving office. Notably, these regulatory “freeze memos” are not uncommon for incoming administrations to issue. This pause on the prior administration’s last-minute regulations will give the Biden administration the opportunity to evaluate the so-called “midnight regulations” and determine if they will become final, be amended, or rescinded altogether.

He also issued an Executive Order reinforcing that Title VII prohibits the federal government from discriminating on the basis of sexual orientation or gender identity. The Order references the recent Supreme Court case of Bostock v. Clayton County (blogged about here). Specifically, the Order states “[i]t is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The Order notes that laws that prohibit sex discrimination (specifically referencing Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act) also prohibit discrimination on the basis of gender identity or sexual orientation.


Continue Reading Biden and the Workplace: Early Days, Major Changes

With special thanks to Bradford Newman for this post. 

Ten U.S. senators sent a joint letter to Janet Dhillon, the chair of the Equal Employment Opportunity Commission, on Dec. 8, 2020, urging the EEOC to use its powers under Title VII of the Civil Rights Act of 1964 to “investigate and/or enforce against discrimination related

Listen to our discussion on what employers can do to keep a calm, cooperative workplace even with the stress of the current political climate. This quick chat takes into account recent political tensions that have been roiling for some time now and hit an all-time high last week when armed rioters stormed the Capitol Building

On December 22, a California federal judge issued a nationwide preliminary injunction blocking President Donald Trump’s Executive Order on Combating Race and Sex Stereotyping (“Executive Order”).  The controversial Executive Order restricted diversity training for federal contractors by prohibiting contractors from providing training covering “divisive topics.” U.S. District Court Judge Beth Labson Freeman’s preliminary injunction takes effect immediately, remains in place until further order of the court, and prohibits the federal government from implementing or enforcing key provisions of the Executive Order.

Continue Reading Trump’s Executive Order Limiting Diversity Training Put On Ice For The Holidays

It’s hard to miss the uptick in litigation against high profile US companies over alleged unequal pay for female employees these days. Cases seem to hit the headlines frequently and several targeted industries include professional sports, professional services organizations, and technology companies. With equal pay protections constantly expanding, and employees often seeking class certification, in 2021, employers should be especially diligent in identifying and rectifying unjustified pay disparities.

So, if you need a New Year’s Resolution, consider undertaking a pay equity audit. This will position your company to determine, at baseline, whether any unjustified pay disparities exist, where those disparities lie and proactively take any remedial measures to help mitigate against becoming a headline. In conducting a pay equity audit, employers should pay close attention to the legal backdrop of pay equity, and how that landscape is changing.

As we head into the New Year, here are several US developments companies ought to know:

California Enacts First Employee Data Reporting Law

On September  30, California Gov. Gavin Newsom signed Senate Bill 973, Sen. Hannah-Beth Jackson’s bill relating to annual reporting of employee pay data. SB 973 requires private employers with 100 or more employees to report employee pay data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021, and annually thereafter, for specified job categories by gender, race and ethnicity. California will be the first state to require employers to submit such employee data.


Continue Reading US Pay Equity and Transparency Developments: What You Need to Know Going Into 2021

On December 16, 2020, the EEOC posted a new section on vaccinations in its COVID-19-related technical assistance Q&As, only five days after the FDA granted its first Emergency Use Authorization for a COVID-19 vaccine. Section K of the EEOC’s COVID-19 Q&As (“Vaccinations”) updates and expands the EEOC’s publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” providing information to employers and employees regarding the impact legal requirements under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA) may have on whether and how COVID-19 vaccines can be utilized in the workplace.

The Q&As are linked here, and copied below for ease of reference.

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

1.1  ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.2.


Continue Reading EEOC Issues Much-Anticipated Q&A Guidance on COVID-19 Vaccinations

Organizations will continue to be held accountable for diversity, equality and inclusion post-COVID-19 and in connection with the Black Lives Matter movement. The next few video chats in our series will help in-house counsel and HR executives who are working to build a strong corporate culture of professionalism and respect do so in a way

The US Supreme Court significantly altered federal anti-discrimination law in its landmark June ruling in Bostock v. Clayton County. This week’s video chat provides practical advice for employers following Bostock’s extension of anti-discrimination protections to LGBTQ employees and its interaction with employees’ religious beliefs.

Please click below to watch the video chat:

Religious Beliefs

Welcome to Baker McKenzie’s new Labor & Employment video chat series for US employers, The Employer Rapport. Our lawyers will provide quick, practical tips on today’s most pressing issues for US employers navigating the new normal. The videos complement our blog, The Employer Report, which provides written legal updates and practical insights about

America’s political divisions seem to be deepening. And, what’s troubling for employers is that our polarized political climate appears to be affecting employee productivity significantly, according to research by Gartner. According to a nationwide survey in February, 47% of employees reported that debate surrounding the 2020 elections is impacting their ability to get work done.