8th Circuit Clarifies Minnesota Human Rights Act Doesn’t Cover Remote Workers
Last week, the Eighth Circuit said that a remote worker cannot sue their employer under the Minnesota Human Rights Act (MHRA), noting the law’s language makes clear that it does not apply to nonresidents.
The plaintiff in the case—a Michigan-based remote employee—took time off from work to recover from surgery. Shortly after her FMLA protected leave ran out, her employment was terminated. She sued her employer, alleging her employer violated the MHRA by refusing to accommodate her and by terminating her employment.
Her employer moved for summary judgment, arguing that the plaintiff was not covered under the MHRA because the statute defines an employee as someone who works for an employer and “resides or works in this state [of Minnesota].” The plaintiff had never lived in Minnesota, nor had she traveled to Minnesota for work for nearly two years before she was fired. Accordingly, the district court entered summary judgment for the employer.
On appeal, a three-judge panel honed in on the statute’s “works in this state” language, questioning whether it required Kuklenski to have a physical presence in Minnesota.
While the plaintiff argued the language should be interpreted liberally, the panel disagreed. In its opinion, the panel explained that the “plain meaning” of the phrase requires “some degree of physical presence in Minnesota,” as any other reading would contradict the statute’s purpose to “secure for persons in this state [of Minnesota], freedom from discrimination” because “discrimination threatens the rights and privileges of the inhabitants of this state [of Minnesota].” The panel found these phrases made clear that the law aimed to protect only those who live or work within the boundaries of Minnesota state lines.
The panel also rejected the plaintiff’s arguments that the court should consider her other contacts with the state, such as her supervisors’ and her clients’ physical presence in Minnesota, and her past travel to Minnesota for work. The panel found the MHRA’s language did not consider other factors and that her almost two-year absence from the state between February 2020 and December 2021 belied her argument that her absence was “temporary.”
The decision suggests that a non-resident with “customary or habitual” work in Minnesota potentially could be covered under the MHRA, and further clarifies that a person need not be physically present in Minnesota at the time of the discriminatory conduct to qualify as an employee under the MHRA.
However, an important question remains open: whether there are minimum requirements for travel to, or time spent in, the state of Minnesota to qualify for coverage under the MHRA.
“The plain meaning of this phrase requires some degree of physical presence in Minnesota.”
ecf.ca8.uscourts.gov/…
Are Your Lactation Spaces Compliant?
Lactation spaces go by different names — wellness room, vacant office, storage room. No matter what you call it, there are strict regulations about what the room contains and where the room must be located. Some of the requirements may surprise you.
PUMP Act Requirements
In short, the PUMP Act states that employees “are entitled to a place to pump at work, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.”
However, last year a U.S. Department of Labor (DOL) memo provided more specifics. DOL guidance states that employees must be provided a place to sit, and a flat surface (other than the floor) on which to place the pump. The guidance does not say a refrigerator is required, but rather the employee must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator. Access to electricity is “ideal.” And the guidance states that access to a sink near the lactation “improves the functionality of the space.”
The DOL guidance says that some employers may choose to use a room with a door that closes and covered windows. But an employer can also create a space using partitions, as long as the space is shielded from view and free from intrusion.
But There’s More
Many employers forget that their lactation space must not only comply with the PUMP Act, but also the Pregnant Worker’s Fairness Act (PWFA) regulations. The PWFA regulations turn many of the amenities that were not mandatory into amenities that an employer may be required to provide if an employee makes a request and adding the amenity does not create an undue hardship for the employer.
The PWFA regulations state: “Accommodations related to pumping, such as, but not limited to, ensuring that the area for lactation is in reasonable proximity to the employee’s usual work area; that it is a place other than a bathroom; that it is shielded from view and free from intrusion; that it is regularly cleaned; that it has electricity, appropriate seating, and a surface sufficient to place a breast pump; and that it is in reasonable proximity to a sink, running water, and a refrigerator for storing milk.” Therefore, if an employee asks for something for the PUMP room, consider whether it qualifies as a reasonable accommodation request under the PWFA that you are required to provide.
Lactation spaces are no longer a “bonus room” or a “benefit,” they are a legal requirement. And not providing a room that is compliant with federal law may make you vulnerable to a collective action lawsuit. So do your research and ensure lactation spaces cover your legal basis.
Lactation spaces are no longer a “bonus room” or a “benefit,” they are a legal requirement.
The State of Employment Law: Three States Have Virtually No Anti-Discrimination Laws
Under federal employment discrimination laws, race, color, religion, national origin, sex, sexual orientation, gender identity, disability, age, citizenship status, and genetic information are protected classifications. Most states have a list of protected classes that closely mirrors federal law, and many states have even added more protected classifications. However, three states have largely left civil rights protections in employment to the federal government.
Mississippi has no anti-discrimination statute and therefore has no protected classes of its own. Alabama and Georgia prohibit age discrimination and unequal pay on the basis of sex, and Georgia additionally prohibits disability discrimination, but Alabama and Georgia otherwise have no protected classes. As such, employees who work in those three states are largely dependent on federal law for protection against employment discrimination.
Employers in Mississippi, Alabama, and Georgia may feel they benefit from lesser regulation, as fewer anti-discrimination laws may translate into fewer discrimination charges, as well as less time and lower legal fees devoted to administrative investigations. Many states with more robust anti-discrimination laws conduct civil rights investigations that employers would just as soon avoid. However, the lack of regulation could cut both ways. In fact, those same civil rights investigations that employers dread often prevent lawsuits, as a no-cause dismissal from a state civil rights agency often persuades an employee not to file suit.
Because of their minimal state law protections, employees in Mississippi, Alabama, and Georgia are likely to pursue any discrimination claims at the federal Equal Employment Opportunity Commission. But the EEOC has largely abdicated its duty to investigate charges of discrimination in the past five years, instead simply issuing “right-to-sue” letters that provide said employees with an easy path to court.
Consequently, employers in Mississippi, Alabama, and Georgia may pine for state civil rights agencies to play a more active, gatekeeping role–minimizing costly and time-consuming discrimination lawsuits.
New Executive Order Targets Workplace Discrimination Law: Major Shift Away from Disparate Impact Liability
The latest Executive Order signed by President Trump on April 23, 2025, titled “Restoring Equality of Opportunity and Meritocracy,” eliminates disparate impact liability in federal employment policy. Learn how this change could impact workplace discrimination claims and DEI compliance.
It directs the Attorney General and the Equal Employment Opportunity Commission (EEOC), within 45 days of the order, to “assess all pending investigations, civil suits, or positions taken in ongoing matters under every federal civil rights law within their respective jurisdictions, including Title VII of the Civil Rights Act of 1964, that rely on a theory of disparate-impact liability…” It also directs other federal agencies to effectively do the same, some within 45 days and others within 90 days. And, the Attorney General and EEOC are directed to “formulate and issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education, where appropriate.”
A Significant Shift in Workplace Discrimination Law
While framed as a return to merit-based employment practices, this sweeping Executive Order marks a significant change in how workplace discrimination claims—specifically disparate impact—will be evaluated under federal law.
But what does this mean for employees, employers, and HR professionals?
Let’s start with the basics:
Disparate Impact vs. Disparate Treatment Discrimination: What’s the Difference?
Under U.S. anti-discrimination laws—such as Title VII of the Civil Rights Act—two key legal theories are often used to prove unlawful discrimination:
Disparate Impact Discrimination
This occurs when a neutral workplace policy or practice disproportionately harms a protected group—even if there was no intent to discriminate.
Example:A company implements a height requirement for job applicants. While it appears neutral, it may disproportionately exclude women or individuals of certain ethnic backgrounds. That unintended effect can give rise to a disparate impact claim.
Key Characteristics:
Unintentional discrimination
Based on statistical outcomes
Often seen in hiring, promotions, or testing criteria
Disparate Treatment Discrimination
This is the more familiar form of discrimination—when an employer treats someone differently because of their protected status (race, gender, religion, etc.).
Example:A manager refuses to promote an equally qualified candidate because she is pregnant. This is direct and intentional discrimination.
Key Characteristics:
Intentional unequal treatment
Often easier to identify, but harder to prove without clear evidence
May involve overt bias or prejudice
What the Executive Order Changes:
The new Executive Order eliminates disparate impact liability in federal employment policy and regulations. This means:
Federal agencies, contractors, and regulated entities are no longer expected to analyze or correct practices that produce unequal outcomes unless intentional discrimination can be proven.
Title VI disparate impact regulations previously enforced by the Department of Justice have been revoked.
DEI initiatives that were built to proactively address disparate outcomes may now be legally vulnerable.
The rationale?The Order argues that disparate impact theory forces race-conscious practices, compelling employers to consider demographics over merit, which the administration believes is unconstitutional.
Implications for Employers and DEI Policies
This Order creates a new legal landscape:
Federal Contractors & Government Entities must review their compliance programs—especially those involving hiring, testing, and promotion criteria that previously considered statistical disparities.
Private Employers, though not directly bound, the Order may influence litigation trends and public expectations. Courts may become more skeptical of claims based solely on disparate impact.
Diversity, Equity, and Inclusion (DEI) Programs and strategies focused on closing outcome gaps could be seen as race- or gender-conscious decision-making, which may now face legal challenges.
Employee Protections where employees may find it harder to challenge facially neutral practices that have discriminatory effects, even when patterns of exclusion are evident.
This Executive Order represents a dramatic departure from decades of anti-discrimination enforcement. While the Order re-centers meritocracy as a guiding principle, it also narrows the avenues for challenging systemic inequality in the workplace. The effect of this Executive Order is a significant raising of the bar for employees alleging discrimination. Under the prior framework, a plaintiff could bring a successful claim by showing that a neutral policy disproportionately affected a protected group—even without proving intent.
Now, plaintiffs must prove intentional discrimination—a much more difficult standard. This shift:
Narrows the legal pathway for holding employers accountable for systemic inequities;
Requires evidence of overt bias or discriminatory motive, which is often concealed or subtle; and
Makes it harder to challenge institutional practices that may perpetuate inequality, even if no one person intended to discriminate.
In short, by eliminating disparate impact as a legal tool, the Executive Order removes a critical mechanism for addressing hidden or structural discrimination in the workplace. We will continue to monitor developments regarding the implementation of this Executive Order and its impact on this critical area of the employment law landscape.
Changes to Civil Rights Enforcement: New Executive Order Eliminates Disparate-Impact Liability in Federal Regulations
On April 23, 2025, the President issued an Executive Order (“EO”) titled “Restoring Equality of Opportunity and Meritocracy” that seeks to drastically curtail the use of disparate-impact liability in federal regulations, marking a significant shift in the federal government’s approach to civil rights enforcement. What does this mean for companies going forward?
BackgroundLet’s start with a review of disparate-impact liability under civil rights laws. This concept refers to practices or policies that, while seemingly neutral, disproportionately affect members of a protected class. This type of liability does not require proof of intentional discrimination; instead, it focuses on the outcomes of the policies or practices.
For example, under Title VII of the Civil Rights Act of 1964, disparate-impact liability occurs when an employment practice adversely affects one group more than another, even if the practice appears neutral. If a plaintiff can show that a policy has a disproportionately negative effect on a protected class, the burden shifts to the defendant to demonstrate that the practice is job-related and consistent with business necessity. Disparate-impact liability is also recognized under several other federal and state civil rights laws.
The EO asserts that the foundational principle of the United States is equality of opportunity, not equality of outcomes. The EO criticizes disparate-impact liability as a “pernicious movement” that, in the administration’s view, undermines meritocracy and the constitutional guarantee of equal protection. Disparate-impact liability, as described in the EO, is a legal doctrine that presumes unlawful discrimination based solely on statistical differences in outcomes among groups, even absent any discriminatory intent or facially discriminatory policy. The EO contends that this doctrine compels employers and businesses to consider race or other protected characteristics in decision-making, thereby encouraging racial balancing and undermining individual merit.
Key EO Provisions
The EO focuses on deprioritizing enforcement of any rules that impose disparate-impact liability. It directs the attorney general, in coordination with agency heads, to identify all existing regulations, guidance, rules, or orders that impose disparate-impact liability and reporting on steps for their amendment or repeal within 30 days. The review also extends to state laws and decisions that impose disparate-impact liability. In addition, the EO requires the following:
Revocation of Prior Approvals and Regulations: The EO revokes prior presidential approvals of Department of Justice regulations under Title VI of the Civil Rights Act of 1964 to the extent they impose disparate-impact liability. Specific regulatory provisions in 28 C.F.R. 42.104 are identified for revocation.
Review of Pending Matters: Within 45 days, the attorney general and the chair of the Equal Employment Opportunity Commission (“EEOC”) must assess all pending investigations, civil suits, or positions in ongoing matters under federal civil rights laws that rely on disparate impact liability and take appropriate action consistent with the new policy. The EO directs other agencies, including the Department of Housing and Urban Development and the Consumer Financial Protection Bureau, to review pending proceedings under the Fair Housing Act, Equal Credit Opportunity Act, and related statutes.
Review of Existing Judgments: The EO directs all agencies to evaluate, within 90 days, existing consent judgments and permanent injunctions that rely on disparate-impact theories and take appropriate action.
Future Agency Action and Guidance: The EO directs the attorney general to determine whether federal law preempts state laws imposing disparate-impact liability and to take appropriate measures. The EO also tasks the attorney general and the EEOC Chair with issuing guidance to employers on promoting equal access to employment, including for applicants without a college education.
Implications for Employers and Next StepsThis EO mandates a substantial change in the federal government’s enforcement of civil rights laws, particularly with respect to employment, housing, and credit. Employers should anticipate the following:
Reduced Federal Enforcement: Agencies are directed to deprioritize and amend regulations that can impose disparate-impact liability, potentially reducing the risk of federal enforcement actions that are based solely on statistical disparities.
Regulatory Uncertainty: The EO requires a comprehensive review and potential amendment or repeal of existing regulations that rely on disparate-impact theories, which may result in significant changes to compliance obligations.
State Law Considerations: The EO contemplates federal preemption of state disparate-impact laws, which may lead to further legal challenges and changes at the state level.
Guidance on Merit-Based Practices: Employers may receive new federal guidance emphasizing merit-based hiring and promotion practices, with a focus on individual qualifications rather than group-based outcomes.
Employers should continue to monitor developments as agencies undertake the required reviews and issue new guidance. Employers should also consult with legal counsel under privilege to confidentially review their current policies and practices in light of the coming changes.
What’s Happening With EEO-1 Data Collection
2024 EEO-1 Component 1 Data Collection Set to Proceed
The 2024 EEO-1 Component 1 data collection process is expected to move forward, based on documentation submitted to the White House Office of Management and Budget (OMB) for approval. The proposed 2024 EEO-1 Instruction Booklet states the data collection is slated to begin on Tuesday, May 20, 2025, with a submission deadline of Tuesday, June 24, 2025.The EEOC has stated it intends to publish the finalized dates on its website.
EEOC Seeks to Eliminate Non-Binary Reporting Option
The EEOC has submitted a change request to OMB, aimed at modifying the Instruction Booklet rather than the reporting form itself. Notably, the EEOC is seeking to remove the voluntary reporting option for employees who identify as non-binary.
In previous years, employers had the option to report non-binary employees separately, outside the male/female categories, with the count included in a comments section. However, under Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” the EEOC has eliminated this reporting option entirely.
The updated “Reporting by Sex” section in the revised Instruction Booklet has been reduced to a single sentence: “The EEO-1 Component 1 data collection provides only binary options (i.e., male or female) for reporting employee counts by sex, job category, and race or ethnicity.”
What’s Next
The 2025 EEO-1 reporting cycle, covering 2024 data, appears to be on track, though the EEOC has not yet updated its official EEO-1 data collection website: https://www.eeocdata.org/eeo1.
Employers should monitor for further guidance from the EEOC, especially concerning the reporting of non-binary employees and compliance expectations for federal contractors. In the meantime, employers should consult with outside counsel regarding best practices for compliance and submission of data.
Elder Financial Exploitation
Fraud of all sorts remains on the rise. The federal regulatory banking agencies seem to be focusing on educating banks in an effort to decrease losses to the bank and customers as a result of these scams, especially those geared toward older adults.
In late 2024, the various regulatory agencies issued an Interagency Statement on Elder Financial Exploitation that provided guidance to banks with the goal of increasing the detection and prevention of elder financial exploitation. FinCEN has also previously issued an Advisory and a Financial Trend Analysis on Elder Financial Exploitation.
The Interagency Statement provides banks with nine areas to consider when implementing steps to decrease elder financial exploitation:
Governance and oversight
Employee training
Transaction holds and disbursement delays
Use of trusted contacts
Filing of Suspicious Activity Reports
Reporting to authorities
Providing financial records to appropriate authorities
Engaging with prevention and response networks
Consumer outreach and awareness resources from government agencies
Of those nine areas, I think it is important to address in this article those of employee training, transaction holds and disbursement delays, and the use of trusted contacts.
In recent years, many states have adopted legislation to allow banks to stop or hold a transaction upon a good faith or reasonable belief that such transaction would result in the financial exploitation of an elderly customer. While each state’s laws may read differently, the typical scenario is that a bank may have a time frame during which the transaction may be held or delayed but it must report the information to its state’s adult protective services department or similar agency or department. Now is a good time to review your state’s laws related to financial elder exploitation to determine what your bank can do to stop this type of fraud. These laws may also address other individuals the bank may alert and what information may be provided in these instances.
Training is also of the utmost importance. While it is typical for a bank’s BSA department to monitor accounts for unusual or suspicious account activity and to detect unusual transactions or account patterns outside of a customer’s norm, often such monitoring is completed after the transactions have been conducted. Every bank should train its frontline staff on the red flags and warning signs of elder financial exploitation. A bank’s frontline staff is more likely to notice behavioral red flags such as unusual interactions with a caregiver, urgency in sending a wire, a lonely elder mentioning a new friend who needs money, etc.
Finally, while it is not yet common practice, banks should consider implementing the use of trusted contacts. In order to establish a trusted contact, the bank would obtain permission from its customer to contact a third party designated by the customer when elder financial exploitation is suspected. This would allow the bank to share information that would otherwise be prohibited by privacy laws and regulations and get additional assistance in protecting its customer.
The Interagency Statement offers a clear road map for banks to enhance their efforts in preventing elder financial exploitation. By focusing on the nine critical areas — from governance and employee education to consumer outreach and collaboration with authorities — financial institutions can build stronger protections and more responsive systems. Prioritizing these steps not only mitigates risk but also affirms a commitment to the well-being and financial security of older adults.
President Trump Signs Executive Order Seeking to End Disparate Impact Discrimination
On April 23, 2025, President Donald Trump issued an executive order (EO) calling for an end to disparate impact liability for discrimination and ordering federal enforcement agencies to stop enforcement of antidiscrimination laws based on disparate impact theories.
Quick Hits
President Trump signed an executive order aimed at ending the legal theory of disparate impact discrimination by deprioritizing its enforcement within federal regulations, including Title VII of the Civil Rights Act of 1964.
The move is part of a broader effort by the Trump administration to reshape federal antidiscrimination and DEI policies and could lead to potential legal disputes.
The EO, titled “Restoring Equality of Opportunity and Meritocracy,” effectively deprioritizes disparate impact, calls for technical assistance to be issued by the U.S. Equal Employment Opportunity Commission (EEOC), and questions disparate impact regulations under Title VII of the Civil Rights Act of 1964 and other laws that implicate disparate impact causes of action and liability.
Disparate impact refers to the legal doctrine whereby employers or other entities may be held accountable for a specific employment practice or policy that, while neutral on its face and not intended to discriminate, causes a substantial adverse impact to a protected group (such as sex) and cannot be justified as serving a legitimate business goal for the employer.
Disparate impact liability has been a key component of federal antidiscrimination law and has been upheld in multiple landmark court cases and codified in Title VII as part of the Civil Rights Act of 1991 (42 U.S.C. 200e-2(K)). However, the EO states it is now “the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”
Specifically, the EO orders “all agencies” to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” including Title VII. The order directs the Attorney General and the EEOC chair to “assess pending investigations, civil suits, or positions taken in ongoing matters” that “rely on a theory of disparate-impact liability.”
The EO further revokes “Presidential approval” of key regulations carrying out Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance.
Next Steps
The EO is the latest related to antidiscrimination and diversity, equity, and inclusion (DEI) policies, as the Trump administration seeks to refocus federal policy and eliminate “unlawful” racial preferences. However, the policies have faced over 200 legal challenges, and some aspects of the orders have been enjoined. It is likely that the latest EO could similarly be challenged. Further, while the EO seeks to stop the federal agencies from pursuing claims or taking positions that rely on theories of disparate impact, private individuals may still pursue such claims.
Litigate or Arbitrate? Sixth Circuit Decision Looks at Timing of Sexual Harassment Claim
Can you compel arbitration with an employee who is alleging sexual harassment? You may recall that in 2022, Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), which precludes employers from requiring employees to arbitrate sexual harassment claims. But what if the alleged harassment occurred before the EFAA effective date? A recent Sixth Circuit opinion, Memmer v. United Wholesale Mortgage, LLC, answered this question.
EFAA Background
Congress passed the EFAA on the heels of the #MeToo movement, which highlighted that arbitration could be used to hinder public awareness of sexual harassment claims and potentially deter employees from pursuing claims, including class actions. Under the EFAA, an employee may voluntarily agree to proceed with arbitration of a sexual harassment claim, but an employer cannot compel as much.
The EFAA applies “with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act [March 3, 2022].”
But what does this language actually mean? Is it possible for the EFAA to apply to an instance of sexual harassment that occurred prior to March 3, 2022? If the employee left employment before the effective date, can you compel arbitration?
The Memmer Decision Sheds Some Light
Kassandra Memmer quit her job several months before the enactment date of the EFAA and filed a lawsuit alleging a variety of discrimination claims, including sexual harassment. Given her termination date, the alleged harassment occurred prior to March 3, 2022. Not surprisingly, the defendant moved to compel arbitration based on a valid agreement, arguing that the EFAA did not apply to the plaintiff’s claims. The district court agreed, and Memmer appealed.
The majority opinion, authored by Judge Karen Moore and joined by Judge Eric Clay, focused on the EFAA’s language in a statutory note, specifically Congress’s disjunctive language choice, “dispute or claim.” Given Congress’s use of both words, the Court held it had to ascribe a separate meaning to each word. On the one hand, a “claim” accrues when the cause of action accrues, meaning certain elements are in place to form an injury or legal claim ripe for vindication. As for the word “dispute,” the Court held that there is no “set legal framework” to determine when a dispute arises. Instead, the question involves determining exactly when the parties became adverse to one another.
By giving distinct meanings to the words “dispute” and “claim,” the Court held that even though the plaintiff’s claims accrued prior to the enactment date of the act, the dispute between the parties may have transpired after the enactment date of the EFAA. Accordingly, the Court remanded to the district court for consideration of exactly when the dispute arose between the parties.
Based on the Memmer case, employers who seek to compel arbitration of sexual harassment claims cannot rely only on the employee’s separation date. Instead, an employer must also consider when the dispute arose, or when some type of opposition between the parties transpired. The operative dates could be when the employee complains of harassment, when the employer investigates (or does not investigate) the sexual harassment complaint, when the plaintiff files an EEOC charge, or even when the plaintiff files a lawsuit. In the words of the Sixth Circuit, “[u]ltimately, when a dispute arises is a fact-dependent inquiry” that depends on the specific context of each case.
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President Trump Issues Executive Order Aimed at Eliminating Disparate Impact Liability Under Anti-Discrimination Laws
On April 23, 2025, the White House issued an Executive Order (“EO”) entitled “Restoring Equality of Opportunity and Meritocracy,” which aims to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”
First recognized under Title VII of the Civil Rights Act of 1964 (“Title VII”) by the U.S. Supreme Court in Griggs v. Duke Power Co. (1971), disparate impact liability provides that a policy or practice that is facially neutral and applied without discriminatory intent may nevertheless give rise to a claim of discrimination if it has an adverse effect on a protected class, such as a particular race or gender. Disparate impact liability has also been recognized under fair housing laws and in other contexts.
The EO characterizes disparate impact liability as creating “a near insurmountable presumption of unlawful discrimination . . . where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.” The EO further states that disparate impact liability “all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability” and “is wholly inconsistent with the Constitution.”
To that end, the EO, among other things:
directs all executive departments and agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” including but not limited to Title VII;
orders the Attorney General, within 30 days of the EO, to report to the President “(i) all existing regulations, guidance, rules, or orders that impose disparate-impact liability or similar requirements, and detail agency steps for their amendment or repeal, as appropriate under applicable law; and (ii) other laws or decisions, including at the State level, that impose disparate-impact liability and any appropriate measures to address any constitutional or other legal infirmities”;
orders the Attorney General and the Chair of the EEOC, within 45 days, to “assess all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law within their respective jurisdictions . . . that rely on a theory of disparate-impact liability, and [] take appropriate action” consistent with the EO;
orders all agencies, within 90 days, to “evaluate existing consent judgments and permanent injunctions that rely on theories of disparate-impact liability and take appropriate action” consistent with the EO;
orders the Attorney General, in coordination with other agencies, to “determine whether any Federal authorities preempt State laws, regulations, policies, or practices that impose disparate-impact liability based on a federally protected characteristic such as race, sex, or age, or whether such laws, regulations, policies, or practices have constitutional infirmities that warrant Federal action, and [] take appropriate measures” consistent with the EO; and
orders the Attorney General to initiate action to repeal or amend regulations contemplating disparate impact liability under Title VI of the Civil Rights Act of 1964, which prohibits race, color, and national origin discrimination in programs and activities receiving federal financial assistance.
The EO also orders the Attorney General and the Chair of the EEOC to “jointly formulate and issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education, where appropriate.”
Takeaways
This EO is the latest evidence of shifting enforcement priorities by the federal agencies tasked with enforcing civil rights laws, including the EEOC. The ultimate scope of the EO’s impact remains to be seen, particularly as it relates to the potential for preemption of disparate impact liability under state or local anti-discrimination laws. Congress has the authority to amend any federal statutes to specifically address a disparate impact theory of liability, and the courts will continue to have the ultimate say on whether and to what extent such a theory is cognizable under particular statutes. We anticipate further updates in this area and will continue to monitor and report on these updates.
Washington State Makes Key Changes to Amend Equal Pay and Opportunities Act
On April 22, 2025, the Washington State Senate passed Substitute Senate Bill 5408, as amended by the House on April 15, 2025 (“Amended SSB 5408”), making substantial changes to the Equal Pay and Opportunities Act related to pay and benefit information in job postings, a law that has resulted in hundreds of class action lawsuits since summer 2023.
Amended SSB 5408 makes significant changes to the law as it relates to procedures and potential damages, but it maintains the pay transparency in job posting requirements.
Quick Hits
Under SSB 55408, which amends the Equal Pay and Opportunities Act, Washington employers may now list a fixed pay amount instead of a wage range if only one amount is offered, including for internal transfers; postings that are replicated without employer consent are not considered official job postings.
Between the law’s effective date and July 27, 2027, employers have five business days to correct a noncompliant posting after receiving written notice and can avoid penalties if the posting is timely corrected.
The amended law further defines and clarifies two separate remedies, each of which is exclusive: administrative remedies (civil penalties up to $1,000 and statutory damages between $100 and $5,000 per violation) or remedies via private civil actions, including statutory damages between $100 and $5,000 per violation. Each permits statutory damages and considers factors such as willfulness and employer size.
Key Updates to RCW 49.58.110
The key updates to RCW 49.58.110 follow below.
Wage Scale or Salary Range
The wording of the previous statute appeared to require a “wage scale or salary range,” even if all individuals employed in that position had the same pay or the same starting pay. Amended SSB 5408 permits employers that offer only a fixed amount of pay to list only that fixed amount, and they are not required to provide a wage scale or salary range that does not really exist. This also applies for internal transfers where the employer only offers a fixed wage amount.
Definition of “Posting”
Amended SSB 5408 makes clear that a posting does not include a “solicitation for recruiting job applicants that is digitally replicated and published without an employer’s consent.”
Cure Period
For postings between the effective date of Amended SSB 5408 and July 27, 2027, employers must be given the opportunity to correct a job posting that does not meet the requirements of the law. Under the new law, any person may provide “written notice” to the employer that they believe a posting fails to comply with the job pay transparency requirements, and the employer has five (5) business days from the receipt of the written notice to correct the posting and notify any third-party posting entity to correct the posting. The cure opportunity must be provided before the individual may seek any remedy under the law, and if the posting is timely cured, no damages, penalties, or other relief may be assessed.
Damages/Relief
RCW 49.58.110 previously relied on damages sections that arose from the equal pay law as it existed prior to the job posting wage transparency laws. Amended SSB 5408 now further defines and clarifies two separate remedies, each of which is exclusive.
Administrative remedies. Amended SSB 5408 permits an investigation, encourages conference and conciliation, and, if that fails, permits the director to assess a civil penalty of $500 for a first violation and up to $1,000 for repeat violations, or up to ten percent of the damages. In addition to the civil penalty, costs, and other relief for the affected job applicant or employee, the department may “order the employer to pay each affected job applicant or employee statutory damages of no less than $100 and no more than $5,000 per violation.” Amended SSB 5408 provides factors to be considered when assessing the penalty, including the willfulness of the violation or whether it was a repeated violation; the employer’s size; the amount necessary to deter noncompliance; the purposes of the law; and other factors deemed appropriate.
Private civil action. Amended SSB 5408 leaves in place an affected job applicant or employee’s right to bring a private right of action. The new law, however, provides that an affected job applicant or employee may be “entitled to statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys’ fees and costs.” The court, in assessing statutory damages, may consider the same factors as the agency.
EEOC Breaks Silence on 2024 EEO-1 Filing Cycle and Plans Shortened Filing Period
After a long silence, the U.S. Equal Employment Opportunity Commission (EEOC) has taken steps to move forward with the 2024 EEO-1 Component 1 data collection by submitting documents for approval to the White House Office of Management and Budget. The proposed 2024 EEO-1 Component 1 Data Collection Instruction Booklet states that the 2024 EEO-1 filing platform will open on May 20, 2025, and close on June 24, 2025.
Quick Hits
The 2024 EEO-1 data collection is set to open on May 20, 2025, and close at 11:00 p.m. (EDT) on June 24, 2025.
The proposed 2024 Instruction Booklet requires filers to indicate their federal contractor status and requires federal contractor employers with fifty or more employees (but with fewer than one hundred employees) to file EEO-1 reports.
The proposed 2024 Instruction Booklet removes the option to provide information about non-binary employees.
Shortened Reporting Period
The proposed 2024 Instruction Booklet provides for a shortened reporting period—down to five weeks—from the platform opening date of May 20, 2025, to the filing deadline of June 24, 2025.
Changes to Reporting by Sex
The proposed 2024 Instruction Booklet eliminates the option to report non-binary employees, stating that the reporting provides “only binary options (i.e., male or female) for reporting employee counts.” This change is tied to Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
Reporting Based on EO 11246 Continues
Despite the rescission of Executive Order 11246 on January 21, 2025, the proposed 2024 Instruction Booklet and sample 2024 EEO-1 report provide that federal contractors with fifty or more employees are still required to file EEO-1 reports for the 2024 cycle.
Conclusion
Based on documents submitted by the EEOC, the 2024 EEO-1 Component 1 data collection site will open on May 20, 2024, and close on June 24, 2025. In addition, the proposed EEO-1 Instruction Booklet eliminates all references to non-binary employees. Due to the shortened filing period, EEO-1 filers may want to consider working now toward gathering the data necessary for the filings.