City of Las Vegas Did Not Discriminate Against Employee Based on Her Race/Gender
Lister v. City of Las Vegas, 148 F.4th 690 (9th Cir. 2025)
Latonia Lister sued the City of Las Vegas for sex- and/or race-based employment discrimination under Title VII. Lister was the city’s first African American female firefighter who had worked for the city in that capacity for almost 30 years. Lister alleged that while she was on duty and under the supervision of Captain Michael Brenneman (a white male), she walked into the room at dinnertime and observed Brenneman, who was feeding a dog pieces of steak, say, “Here, girl. Here, Latonia,” while smacking his lips to make kissing noises. After deliberating for nearly two hours, the jury concluded that the incident was “severe or pervasive” and “objectively and subjectively offensive to a reasonable person,” but that it was not retaliatory and was not motivated by gender-based and/or race-based discrimination; nevertheless, the jury awarded Lister $150,000 for pain and suffering damages. Because the jury found no liability on the part of the city, the district court set aside the damages award and entered judgment for the city. The Ninth Circuit affirmed the judgment.
California’s New AI Laws: What Just Changed for Your Business
California just passed comprehensive AI safety legislation, enacting 18 new laws that affect everything from deepfakes to data privacy to hiring practices. If you do business in California — or use AI tools — here’s what you need to know now.
The State That Wouldn’t Wait
While Washington debates federal AI regulation, California has already written the rulebook. This week, Governor Gavin Newsom signed a sweeping package of 18 AI laws into effect, making California the first US state to establish comprehensive governance over artificial intelligence.
The timing matters. With recent federal efforts to preempt state-level AI regulation now stalled, California’s move sets a precedent that other states are already racing to follow. As with their early efforts in the privacy space (through the California Consumer Privacy Act of 2018), California’s AI rules are quickly becoming everyone’s AI rules.
The Flagship: California’s AI Safety Law
The centerpiece of this legislative package is the Transparency in Frontier Artificial Intelligence Act (TFAIA), formerly Senate Bill 53. This landmark law targets the developers of the most powerful AI systems and establishes California as the first state to directly regulate AI safety. It also builds on the recommendations from the Joint California Policy Working Group on AI Frontier Models.
What TFAIA Requires
Developers of “frontier” AI models must now:
Publish their safety plans: Companies must disclose how they’re incorporating national and international safety standards into their development processes.
Report critical incidents: Both companies and the public can now report serious safety events to the California Office of Emergency Services.
Protect whistleblowers: Employees who raise concerns about health and safety risks from AI systems gain legal protection.
Support public AI research: Through a new consortium called CalCompute, California is building a public computing cluster for developing “safe, ethical, equitable, and sustainable” AI.
The Industry Pushback — and What Got Weakened
The tech industry lobbied hard, and it shows. The final version of TFAIA is considerably softer than earlier drafts:
Incident Reporting Narrowed: Companies are only required to report events that result in physical harm. Financial damage, privacy breaches, or other non-physical harms? These aren’t covered under mandatory reporting.
Penalties Slashed: The maximum fine for a first-time violation — even one causing $1 billion in damage or contributing to 50+ deaths — dropped from $10 million to just $1 million. Critics note that this creates a troubling cost-benefit calculation for large tech companies, which has arguably played out in other areas.
The message? For billion-dollar corporations, safety violations may be just another line item in the budget.
The Broader Package: 18 Laws Reshaping AI Use
Beyond TFAIA, California’s new laws create compliance obligations across multiple industries, many of which took effect in January 2025. For instance:
1) Deepfakes and Election Integrity
California is taking direct aim at AI-generated deception:
Criminal penalties for deepfake pornography: Creating or distributing non-consensual intimate images using AI is now a crime (SB 926).
Election protections: Laws like AB 2655 and AB 2355 require platforms to label or block “materially deceptive” election content, particularly AI-generated videos or audio that could damage candidates or mislead voters.
Real-world impact: Political campaigns and content platforms must now implement detection and labeling systems before the 2026 election cycle.
2) Your AI Data Is Now Personal Information
Here’s a change that affects everyone: AI-generated data about you is now officially “personal information” under California’s Consumer Privacy Act (AB 1008).
What does this mean practically?
AI systems that create profiles, predictions, or inferences about you must now treat that output data with the same protections as traditional personal information.
You gain new rights to access, delete, and control AI-generated data about yourself.
Neural data — information about your brain activity — gets even stronger protection as “sensitive personal information” (SB 1223).
3) The Workplace: No More AI Autopilot
New regulations from California’s Civil Rights Department, effective October 1, 2025, fundamentally change how AI can be used in employment:
The Core Rule: Employers can’t use automated decision systems (ADS) that discriminate based on protected categories under the Fair Employment and Housing Act.
The Requirement: Companies should conduct bias audits of their AI tools used for hiring, promotion, and evaluation.
The Shift: This moves liability away from proving intent to discriminate and toward demonstrating impact. If your AI tool produces discriminatory outcomes — even unintentionally — you’re exposed to legal risk. This is not dissimilar to recent shifts in the children’s privacy law landscape that impose specific constructive knowledge standards.
Practical example: That resume-screening AI you’re using? You need documentation showing you’ve tested it for bias against protected groups. No audit? You’re rolling the dice.
4) Healthcare: Keeping Humans in the Loop
California’s new healthcare AI laws establish a critical principle: algorithms can’t make final medical decisions.
Under SB 1120, AI systems are prohibited from independently determining medical necessity in insurance utilization reviews. A physician must make the final call.
Why this matters: This protects patients from algorithmic denials while still allowing AI to assist with analysis and recommendations. It’s a model other states are already adopting.
What This Means for Your Business
If You’re a Tech Company
Immediate action items:
Review your AI systems against the new compliance requirements.
Document your safety practices and bias testing procedures.
Establish whistleblower protection policies.
Prepare for increased scrutiny from California regulators.
Strategic consideration: California’s strictest-in-the-nation rules often become de facto national standards. Building for California compliance now may save costly adjustments later.
If You Use AI Tools
Questions to ask your vendors:
Have you conducted bias audits on this system?
What happens if your AI produces a discriminatory outcome?
Do your contracts shift all liability to us?
How do you handle California’s new data privacy requirements?
Red flag: Vendors that can’t answer these questions clearly, or whose contracts dump all AI-related liability onto you, pose significant risk.
If You’re in Healthcare
Priority actions:
Review all AI-assisted utilization review processes to ensure physician oversight.
Train staff on new disclosure requirements for AI in patient interactions.
Document human review procedures for all AI-driven medical decisions.
This analysis is current as of September 30, 2025.
Employment Tip of the Month – October 2025
Q: Can employers safely use artificial intelligence (AI) in the hiring process?
A: While some states and jurisdictions do not have any direct law or statute regulating the use of AI during hiring, employers should be concerned about the potential bias in the output from AI used in employment decisions and take steps to ensure that they are not in violation of discrimination and privacy laws.
Background on Use of AI The immersion of AI has accelerated rapidly in recent years, changing the way we work across many industries. From automating routine tasks to assisting in making complex decisions, AI has brought exciting possibilities. With that being said, this rapid advancement and expansion has raised serious concerns regarding AI in the employment context, particularly around algorithmic bias, workplace surveillance, and job displacement. As AI becomes more integrated into workplace management, it’s imperative for employers to stay ahead of the evolving legal standards to ensure compliance, protect employee rights, and manage risk around accountability and fairness.
Public officials and legislatures are increasingly focused on the potential risks and benefits that come with using AI technology. In the employment realm specifically, laws affecting employers include those that regulate the use of automated employment decision tools (AEDTs) in the hiring process. Examples of this legislation can be seen in New York Local Law 144 and Illinois H.B. 3773. New York Local Law 144 was the first of its type to create obligations for employers when AI is used for employment purposes. Illinois followed by enacting H.B. 3773, making it the second state to pass broad legislation on the use of AI in the employment context.
More legislation is on the way in 2025, generally falling into two distinct categories. The first would require employers to provide notice that an automated decision-making system for the purpose of making employment-related decisions is in use. The second aims to limit the purpose and way an automated decision system may be used. This article will highlight proposed, enacted, and failed legislation, and offer takeaways about what to be aware of moving forward.
Currently Enacted LegislationNew York has followed a broad trend seeking to bring transparency to the use of automated decision systems, including AI, in employment and other areas through two pieces of legislation. New York Local Law 144, which took effect on January 1, 2023, prohibits employers and employment agencies from using an AEDT in New York City unless they ensure a bias audit was done and provide notice. If employers or employment agencies use an AEDT to substantially help them assess or screen candidates at any point in the hiring or promotion process, they must comply with the law’s requirements. The next piece of legislation, New York S.B. 822, effective July 1, 2025, amended existing law on AI and employment regarding state agencies and prohibits the use of AI to affect existing rights of employees pursuant to a collective bargaining agreement.
Illinois joined New York in passing legislation to regulate AI and the risks associated with its use in the employment context. H.B. 3773 amended the Illinois Human Rights Act (IHRA) and affects any employer who currently uses, or intends to use, AI, including generative AI, to make decisions around recruitment, hiring, promotions, training, discharge, or any other term or condition of employment. The amendment prohibits employers from using AI in ways that may lead to discriminatory outcomes based on characteristics protected under IHRA. Additionally, employers are required to give notice if they are using AI in this realm. The Illinois Department of Human Rights and Illinois Human Rights Commission will enforce the law, with remedies possibly including back pay, reinstatement, emotional distress damages, and attorneys’ fees. This goes into effect January 1, 2026.
Additional legislation has been enacted in Colorado, Maryland, California, and other states. The Colorado AI Act, which will take effect on February 1, 2026, is designed to regulate the use of high-risk AI systems by imposing compliance obligations on developers of the systems and the businesses that use them. The Act is designed to encompass the employment context sphere, resulting in Colorado employers being subject to the law. On June 30, 2025, California provided regulations under the Fair Employment and Housing Act that address use of AEDTs in employment decisions, effective October 1, 2025. Maryland has also implemented legislation, section 3-717, that forbids the use of facial recognition services to create a facial template during an applicant’s interview without a waiver signed by the applicant.
Failed LegislationDespite the influx of enacted legislation regarding AI in employment, much has failed to be passed into law.
In Connecticut, a bill that would have implemented AI protections for employees and limited the use of electronic monitoring by an employer failed.
In Texas, three separate bills failed to pass, the first relating to AI training programs and attempting to impose requirements on the developers of these systems. An additional proposed bill prohibited state agencies from using an automated employment decision tool to assess a job applicant’s fitness for a position unless the applicant was notified and provided with information, and any bias was mitigated.
In Georgia a bill was proposed to prohibit surveillance-based price discrimination and wage discrimination, but ultimately failed.
Lastly, the Nevada legislature proposed a bill to require AI companies to maintain policies to protect against bias, generation of hate speech, bullying, and more. The bill would have imposed requirements on employers, landlords, financial institutions, and insurers to uphold these standards.
Even legislation that reached the final stage of the process has had difficulty being passed. For example, Virginia Governor Glenn Youngkin vetoed an AI bill on March 24, 2025, that would have regulated how employers used automation in the hiring process. Specifically, the bill would have regulated both creators and users of AI technology across multiple use cases, including employment. Youngkin stated that he vetoed the bill out of fear that it would erode Virginia’s progress in attracting AI innovators and tech startups.
All states remain very interested in regulation of these emerging AI tools and features but have yet to align on the best way to handle such regulations. Much of the legislation that fails lacks specificity and the level of intricacy that the passed laws on this topic contain.
Proposed and Pending LegislationDespite frequent failure of legislation regarding AI in the employment context, there is an array of pending legislation throughout the United States in 2025, with three overlapping themes.
The first is aimed at requiring employers to provide notice that an automated decision-making system for the purpose of making employment-related decisions is in use (see California Senate Bill 7, Illinois Senate Bill 2203, Vermont House Bill 262, Pennsylvania House Bill 594, New York Senate Bill 4349 and 185).
The second is legislation aimed at limiting the purpose and way an automated decision system may be used to make decisions (see California Senate Bill 7, Colorado House Bill 1009, Massachusetts House Bill 77, New York A.B. 3779 and 1952).
The third is legislation aimed at allowing bargaining over matters related to the use of AI between the state and its employees (see Washington Senate Bill 5422). States such as New York aim to expand measures to hold employers accountable for AI-driven employment decisions, where others including Massachusetts hope to develop a comprehensive legal structure to deal with these types of issues that present in AI and employment.
What This Means for EmployersThe influx of legislation makes it imperative that employers pay careful attention and strengthen their AI compliance practices. In doing so, employers should focus on the follow important points.
Be Transparent: Job candidates and employees should be informed when AI tools are used in their selection process or evaluations. On the flip side, employers may want to ask for confirmation that candidates did not use AI to produce application materials.
Prepare for Accommodations with AI Use: Have accommodation plans in place should a candidate seek a disability accommodation, particularly recognizing that many laws and federal regulations instruct employers to provide an alternative to the AI tool.
Develop AI Use Policies: In crafting policies, employers should consider how their employees may use AI along with how employers want them to use the technology. Policies should have usage guidelines and best practices.
Check and Audit Vendors: Employers should be mindful in selecting AI vendors that ensure their systems are not biased, can be audited, and can duly address reasonable accommodations in the recruiting and hiring process. If possible, employers should (1) require that representations used by AI tools in workplace contexts are legally compliant and (2) attempt to negotiate indemnification protections from AI vendors and obtain their cooperation in defending against related claims.
Validate Results: Employers should ensure a diverse applicant pool before the application of AI and consider hiring an industrial organization psychologist to conduct validation research. Validate the results of the use of the tool and compare to results human decision-makers have obtained.
Stay Informed and Stay Tuned to Legal Shifts: It is important to stay up to date on existing and pending legislation related to AI to ensure AI tools are consistent with federal, state, and local law, and to update policies and practices consistent with legal developments.
Retain Human Oversight: Ensure critical decisions aren’t made solely by automated tools. Train HR teams on when to override algorithmic rankings, and audit results for desired (and non-discriminatory) outcomes.
Avoid Litigation Regarding AI Workplace Tools: To avoid legal entanglement, businesses should carefully review any AI tools used for employment functions, potentially turning to both technical and employment law experts for independent audits to ensure they are not biased or otherwise potentially violating applicable employment laws. This is recommended even if their jurisdiction has no new AI-specific discrimination laws because of the rapid adoption of AI workplace tools and the potential for liability under existing non-AI-specific employment laws
With all of the above, consulting with an attorney in connection with best practices in employment can help navigate compliance with all applicable federal, state, and local laws.
DOJ Blesses ‘Situational Telework’ as Reasonable Religious Accommodation
The U.S. Department of Justice (DOJ) has released an advisory memorandum opinion making clear that Title VII of the Civil Rights Act of 1964 may require the federal government to provide “situational telework” to its employees as a religious accommodation. This development is part of the Trump administration’s ongoing efforts to expand religious protections in the workplace. Although the memorandum opinion focuses on religious rights in the federal government workplace, private-sector employers also may wish to consider situational telework (or “telecommuting”) as a religious accommodation.
Quick Hits
Existing guidance on religion in the federal workplace largely remains intact, but federal employers now face a higher standard to demonstrate undue hardship when denying requests for religious accommodation.
Situational telework can be a reasonable religious accommodation, but it is not an automatic entitlement, the DOJ stated in a recent memorandum opinion prepared for EEOC Acting Chair Andrea Lucas.
Private-sector employers may wish to consider the impact of the DOJ’s memorandum opinion on their own religious reasonable accommodation obligations.
On September 18, 2025, the DOJ’s Office of Legal Counsel issued a memorandum opinion, “Religious Liberty Protections for Federal Employees in Light of Recent Legal Developments,” in response to U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas’s question as to how recent legal developments impacted the “Guidelines on Religious Exercise and Religious Expression in the Federal Workplace,” issued by the Clinton administration in 1997, and a 2017 memorandum from then–Attorney General Jeff Sessions, “Federal Law Protections for Religious Liberty.” The EEOC also asked if situational telework was an appropriate religious accommodation, given the federal government’s directive that federal employees return to in-person work on a full-time basis.
Prior Federal Workplace Religious Rights Guidance
The 1997 guidelines (which the 2017 memorandum noted had “the force of an Executive Order”) informed federal agencies that they did not have to provide religious accommodations if they caused more than a “de minimis cost” to the agency. The guidelines made clear that “that cost or hardship … [had] to be real rather than speculative or hypothetical” and that “the accommodation should be made unless it would cause an actual cost to the agency or to other employees or an actual disruption of work, or unless it [was] otherwise barred by law.” Agencies were instructed not to restrict personal religious expression by federal employees except where “the expression intrude[d] upon the legitimate rights of other employees or create[d] the appearance, to a reasonable observer, of an official endorsement of religion.”
The DOJ’s Analysis of Prior Federal Workplace Religious Rights Guidance
The DOJ determined that the prior guidance largely remained intact, with two important changes.
First, the DOJ explained that the Supreme Court of the United States’ 2023 Groff v. DeJoy decision means that agencies should disregard any references in the prior guidance to the “de minimis” standard for establishing an undue hardship. In Groff v. DeJoy, the Court held that the undue hardship standard requires a substantial burden, rather than the previous “more than de minimis” impact undue hardship standard that courts were using.
Second, the DOJ rejected the “no official endorsement of religion” requirement as “a special restriction on religious expression without a constitutionally valid justification.” The DOJ clarified, however, that this conclusion does not permit all religious expression in the workplace; an agency still “may restrict any speech that truly interferes with its ability to perform public services.” An agency also may restrict coercive religious expression, such as, for example, a supervisor insisting that employees participate in religious activities as a condition of continued employment.
The DOJ’s Recognition of ‘Situational Telework’ as a Religious Accommodation
The DOJ also determined that federal agencies must consider situational telework as a reasonable religious accommodation, even though President Donald Trump issued a “Return to In-Person Work” memorandum on January 20, 2025. The DOJ defined “situational telework” as meaning occasional and not routine or recurring telework.
In affirming that federal agencies must consider situational telework as a reasonable religious accommodation, the DOJ pointed out that telework is a viable accommodation under other laws, including the Americans with Disabilities Act. Additionally, the DOJ noted that several courts recently have allowed Title VII claims to proceed where employers denied employees telework as a religious accommodation, although no court has definitively ruled on the issue. The DOJ also cited an EEOC-provided example of telework as a religious accommodation: when an employee’s work location is far from a place of religious observance and telework would reduce the time off needed for the observance.
The DOJ clarified that “[w]hether a particular accommodation is warranted in any given context is always a ‘fact-specific inquiry,’” noted that “[s]ome employees are unable to telework effectively given the nature of their duties, performance history, or other considerations,” and cited to an EEOC decision denying telework as a religious accommodation due to “past telework abuse and poor performance.” The DOJ warned, however, that agencies cannot deny situational telework accommodations because of concerns about fairness to other employees or co-worker disgruntlement.
Lessons for Employers
Although the DOJ’s recent memorandum opinion and the federal guidance it addresses are intended for federal agencies, the EEOC may attempt to apply these principles to private-sector employers. Accordingly, employers may wish to consider the following when reviewing religious accommodation requests from employees:
No hostility to religion: Policies should be applied neutrally and without animus; religious exercise should be accommodated when possible.
Broad protection for religious exercise: Federal law protects not only belief but also religious practices and observances.
Sincerity and neutrality: Employers should usually assume the validity of a religion or religious belief and avoid favoring some religions over others; they may, however, assess the sincerity of the religious belief if objective reasons exist to do so.
Accommodation obligation: Title VII requires reasonable accommodation for sincerely held religious beliefs, practices, and observances unless doing so would impose undue hardship on the business or its operations, utilizing Groff’s relatively strict “substantial” burden test.
Interactive process: Employers should engage in a discussion with the employee regarding the employee’s religious needs and possible accommodations. The reasonable accommodation ultimately provided need not be the exact one requested or preferred by the employee.
Situational telework: This might be an appropriate reasonable religious accommodation if it addresses a religious conflict or assists employees with performing their job duties.
DOJ Restructures Civil Division: New Enforcement & Affirmative Litigation Branch
Highlights
The U.S. Department of Justice (DOJ) consolidated civil enforcement and affirmative litigation in a new branch, replacing the Consumer Protection Branch.
Key enforcement areas include federal immigration compliance and gender-affirmative care, especially for minors.
Organizations should review compliance programs, policies, and marketing materials to mitigate potential civil litigation risks.
The DOJ has announced the creation of a new Enforcement & Affirmative Litigation Branch within its Civil Division. This branch replaces the Consumer Protection Branch (CPB) and consolidates the DOJ’s affirmative litigation and enforcement efforts under a single unit.
Branch Structure and Focus
The branch will be organized into two sections:
Affirmative Litigation Section: Represents the U.S. in lawsuits against states, municipalities, and private entities that interfere with or obstruct federal policies. This section focuses on ensuring compliance with federal law, including actions related to immigration policies and gender-affirmative care.
Enforcement Section: Utilizes the DOJ’s experience in civil enforcement under federal statutes, including the Controlled Substances Act, Federal Food, Drug, and Cosmetic Act, Consumer Product Safety Act, Federal Trade Commission Act, Children’s Online Privacy Protection Act, and Restore Online Shoppers’ Confidence Act. This section also has limited authority to investigate and pursue criminal violations under certain healthcare-related statutes, but broader criminal prosecutions remain the responsibility of the DOJ’s Criminal Division.
Key Areas of Focus
Federal immigration enforcement, including actions related to jurisdictions or so-called “Sanctuary Cities” that do not cooperate with federal immigration authorities.
Gender transition and gender-affirmative care, particularly for minors, including investigations and potential civil enforcement actions concerning:
Marketing and promotion of gender-affirmative medical services;
Compliance with federal and state regulations regarding treatment for minors; and
Policies and procedures of healthcare providers, clinics, and affiliated entities that provide or facilitate gender-affirmative care.
Other civil enforcement matters previously handled by the CPB.
Assistant Attorney General Brett A. Shumate noted that consolidating the Civil Division’s affirmative litigation work is intended to strengthen the DOJ’s ability to pursue litigation and enforcement initiatives.
Implications for Organizations
Increased Focus on Enforcement: Entities involved in healthcare, immigration services, or other regulated areas should anticipate scrutiny and potential civil litigation under the DOJ’s revised structure.
Gender-Affirmative Care Considerations: Providers of gender-affirmative services, particularly those serving minors, should review their practices, policies, and marketing materials to ensure compliance with applicable laws and regulations.
Review Compliance Programs: Organizations may want to examine and strengthen internal policies and procedures to ensure alignment with federal requirements across affected areas.
Stay Informed: Monitoring DOJ announcements and enforcement actions will be important to understand how the branch’s priorities evolve.
Leadership Shift at OFCCP & EEOC — And What DOL’s Proposed Budget Could Mean for Federal Contractor Compliance
The federal compliance landscape is in flux. In a closely watched leadership transition, Catherine Eschbach is leaving her role as Director of the Office of Federal Contract Compliance Programs (OFCCP) to become Principal Deputy General Counsel at the EEOC. Starting Monday, Ashley Romanias will take the helm at OFCCP. But even as the baton passes, looming budget decisions at the Department of Labor (DOL) may reshape how, or even whether, OFCCP operates going forward.
Eschbach Moves to EEOC; Romanias to Lead OFCCP
Eschbach’s tenure at OFCCP has been notable for reorienting the agency’s agenda—particularly around affirmative action, diversity, equity, and inclusion (DEI), and contractor obligations under executive orders. Her transition to a top legal role at EEOC suggests potential for alignment between contractor oversight and discrimination enforcement.
Ashley Romanias comes into the OFCCP role with a dual background in government policy and private practice:
She served as a Senior Policy Advisor at the U.S. Department of Labor, working across agencies such as EBSA, OSHA, and MSHA.
She practiced law as an associate at an AmLaw 100 firm, where she gained experience in employment and regulatory matters.
Her mix of policy and legal experience may give her credibility in navigating internal DOL policies, enforcement priorities, and the expectations of federal contractors.
DOL’s Budget Proposal: Threats to OFCCP’s Future
Even as new leadership takes hold, the financial backdrop remains unsettled. The proposed FY 2026 DOL budget aims to eliminate discrete funding for OFCCP entirely and transfer its enforcement functions for veterans (VEVRAA) and disability (Section 503) to other agencies.
Key Budget Highlights & Risks:
The FY 2026 budget justification shows a zero-dollar request for OFCCP and proposes that enforcement of Section 503 be moved to EEOC, and VEVRAA to the Veterans’ Employment and Training Service (VETS).
DOL’s total discretionary funding request falls from ~$13.3 billion to ~$8.6 billion—a ~35 percent reduction.
In the House Appropriations mark, the committee voted for no funding for OFCCP for FY 2026.
The Senate appropriations version is less drastic, offering a reduction(approximately $5 million less than FY 2025) rather than zero funding.
The gap between DOL’s proposed termination and Congressional pushback means the final funding outcome for OFCCP is therefore currently unresolved—and the agency’s operations may be suspended or scaled back during the budget negotiation period.
What This Means for OFCCP:
Symbolic vs. Real Authority — Even with Romanias installed as Director, she will have little ability to advance the OFCCP agenda if Congress removes the agency’s funding.
Transition vs. Undoing — The proposed transfer of enforcement responsibilities could reshape—or even shrink—the scope of what the “new” OFCCP does.
Uncertainty & Volatility — The difference between the House and Senate proposals means OFCCP could face cutbacks mid‑fiscal year.
Coordination Imperative — If Congress approves the transfer proposals, coordination between OFCCP, EEOC, and VETS will become critical.
What Employers & Contractors Should Watch (and Do)
Follow the Budget Process Carefully: The House, Senate, and White House budgets differ significantly.
Don’t Assume Relief from Enforcement: Even if funding is curtailed, existing audits, complaints, or compliance reviews may survive.
Monitor Organizational Changes: As roles and responsibilities are reallocated, companies will need to adjust reporting lines and compliance strategies.
Advocate & Engage: Stakeholders should engage with appropriations committees and consider submitting comments.
Prepare for Dual Regimes: Contractors may need to navigate overlapping obligations—some from legacy OFCCP expectations, some from EEOC or VETS enforcement.
Concluding Thoughts
The leadership transition at OFCCP—Eschbach to EEOC and Romanias to Director—marks a turning point. But the fate of OFCCP may ultimately hinge on whether Congress grants additional funds for operation. If the proposed budget passes unchanged, Romanias’s tenure may involve managing the winding down of an agency rather than reimagining or rebuilding it.
In that environment, contractors should brace for ambiguity, stay close to developments in both the appropriations and regulatory arenas, and ensure their compliance controls remain robust regardless of who is in charge.
Breaking OFCCP News: Catherine Eschbach Leaving OFCCP
It is being reported that Ashley Romanias has assumed leadership of the Office of Federal Contract Compliance Programs (OFCCP), as Catherine Eschbach steps into a new role as Principal Deputy General Counsel at the Equal Employment Opportunity Commission (EEOC).
At the time of this post, the U.S. Department of Labor (DOL) has not yet issued a formal public announcement of Director Eschbach’s departure or the appointment of a new director. Romanias most recently served as a Senior Policy Advisor with the DOL.
We are closely monitoring this developing situation and will provide updates as they become available.
Discovery 101: What to Expect in Your Employment Discrimination or Retaliation Case [Video]
You’ve filed a discrimination or harassment lawsuit—now what? The next phase, discovery, is where the real battle begins. It’s often the most time-consuming part of litigation, and it can make or break your case.
What Is Discovery?
Discovery is the court-supervised process where both sides exchange information about the claims. In plain English, it’s your chance to uncover the facts you need to prove your employer discriminated against you—and your employer’s chance to test your story.
Courts allow discovery into any non-privileged matter that’s relevant and proportional to the case, weighing factors like:
The importance of the issues at stake
The amount of money involved
Each side’s access to information and resources
Whether the burden of producing the information outweighs its value
Bottom line: discovery is about pulling together the evidence that will win (or lose) your case.
The Big Three Discovery Tools
Most discovery in employment cases happens through three methods:
Depositions – sworn, in-person questioning of you, your supervisors, and other witnesses.
Interrogatories – written questions you must answer under oath, often about your allegations and potential witnesses.
Requests for Documents – demands for emails, personnel files, performance reviews, pay records, and more.
Federal rules usually limit each side to 10 depositions (max 7 hours each) and 25 interrogatories, though local court rules may impose stricter limits.
What Each Side Wants
During discovery, you and your employer will both be digging deep. Expect requests like:
From your employer:
Prior complaints you made (internally or to the EEOC)
Witnesses you’ve spoken with about the discrimination
Documents supporting your claims
Details on your damages (lost pay, emotional distress, etc.)
From you:
Your personnel file and performance reviews
How your coworkers were treated in comparison
Other complaints of discrimination against the company
Records of the company’s investigation into your complaint
Emails, memos, or other communications about your claims
Each case is unique, but these categories are common battlegrounds.
Discovery Disputes and E-Discovery
Discovery often sparks fights. Employers may argue your requests are too broad, too costly, or too burdensome—especially with e-discovery (emails, digital files, old servers). On the flip side, employers often demand sensitive personal information from you, especially if you’re claiming emotional distress damages. These can include medical records, therapy notes, or even questions about past trauma.
Your attorney’s job is to push back on intrusive or irrelevant requests and make sure discovery stays focused on what truly matters.
The Proportionality Rule
Recent changes to federal rules added a proportionality standard, designed to prevent one side from forcing the other to spend massive amounts of time and money on minor disputes. But in practice, this has only fueled more arguments over what’s “proportional.”
Why You Need an Experienced Lawyer
Discovery is complex, invasive, and often overwhelming—but it’s also where cases are won. You need an attorney who knows how to uncover damaging evidence against your employer while protecting your privacy.
Sixth Circuit: “Twitter tirade” by Professor Critical of Public University Not Protected Speech
A recent decision from the United States Court of Appeals for the Sixth Circuit confirms public employers can consider certain employee speech on social media in making personnel decisions.
Key Takeaways:
Legitimate, Nondiscriminatory Reason for Adverse Action. Social media posts containing attacks on the employer and coworkers can be a legitimate nondiscriminatory reason for an adverse employment action. Policies prohibiting such attacks may aid in establishing the existence of a nondiscriminatory reason for an adverse action.
Speech on Social Media Not Always Protected. Public employers retain the ability to discipline or otherwise make personnel decisions based on social media posts that do not speak on a matter of public concern. Speech on matters of public concern couched within personal attacks does not make the entire speech protected. Further, where such speech undermines the employer’s ability to perform its basic purpose, the speech may not be protected.
In Patterson v. Kent State University, Patterson, a university professor who identifies as transgender, contacted university leadership and requested to become the new Director of the Center for the Study of Gender and Sexuality after the former Director stepped down. University administration informed Patterson that there was not yet a position open, but proposed to reallocate some of Patterson’s teaching load so that Patterson could direct more attention to developing a new gender-studies major. Patterson again inquired about directing the Center, and university administration responded again that they were not yet sure how or when the hiring process would proceed. Patterson proceeded to then engage in a “weeks-long, profanity-laden Twitter tirade” critical of the university, its leadership, and its employees.
Thereafter, the university ultimately declined to elevate Patterson to the not-yet-established leadership position, revoked its previous offer to reallocate or lighten Patterson’s courseload, and denied Patterson’s request to transfer to another university campus. Patterson sued the university, alleging, among other things, claims of sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and retaliation in violation of the First Amendment.
In affirming the district court’s grant of summary judgment in favor of the university on all claims, the Sixth Circuit held that the university had a legitimate, nondiscriminatory reason for taking adverse actions (if any) against Patterson. Namely, the record, according to the Court, was replete with tweets, emails, and texts containing “disparaging” and “profanity-laden” attacks by Patterson referencing the race, sex, and occupations of the university Dean and a coworker, which created a toxic work environment and violated a university policy against such attacks. The Sixth Circuit also concluded that the university was entitled to summary judgment on Patterson’s retaliation claim, because Patterson could not show the decision-makers were aware of any protected activity.
The Sixth Circuit further held that, for two reasons, Patterson’s “Twitter tirade” was not protected by the First Amendment as a matter of law. First, Patterson’s tweets were not speech on a matter of “public concern.” While Patterson argued that some tweets publicized the university’s alleged transphobia and exposed workplace discrimination, the Sixth Circuit explained that those tweets could not be viewed in isolation, as they were “swarmed on either side” by personal attacks on Patterson’s colleagues, and “a public employee can’t blend protected speech with caustic personal attacks against colleagues, and then use the protected speech to immunize those attacks.”
Second, the Sixth Circuit held that even if the tweets did involve a matter of public concern, they were not protected because the university’s interest in educating students and administering effective public services outweighed Patterson’s interest in “trash talk.” In other words, “[w]hen an employee seriously undercuts the university’s power to do its basic job, the Constitution doesn’t elevate the employee over the public that [the university] exists to serve.”
As employee speech on social media continues to pose issues in the workplace, employers – both public and private – should be mindful of their policies and decisions related to that speech.
Litigation Lens: Unpacking ADA Compliance After the Second Circuit’s Expansive Ruling [Podcast]
In this second episode of Ogletree Deakins’ new podcast series Litigation Lens, Michael Nail (Greenville) is joined by Fiona Ong (Baltimore) and Sarah Zucco (New York) to discuss a recent Second Circuit decision that clarifies employers’ obligations to provide reasonable accommodations under the Americans with Disabilities Act (ADA)—even when an employee can technically perform essential job functions without them. The speakers unpack the facts of a case involving a New York teacher’s request for accommodations due to post-traumatic stress disorder (PTSD), explain the court’s rejection of a “necessity-only” standard, and offer practical tips for navigating the fact-intensive, multi-jurisdictional landscape of disability accommodation law.
Arbitration Clauses Continue to Receive Attention in the Second Circuit
Four recent decisions from the U.S. Court of Appeals for the Second Circuit highlight the care organizations must take when selecting arbitration procedures, designing the format and wording of arbitration clauses, and formulating strategy in litigation to compel arbitration. Below, we review those cases and outline several considerations for organizations when evaluating legal strategies related to arbitration.
Flores v. N.Y. Football Giants, Inc.
In Flores, No. 23-1185-cv, 2025 WL 2349199 (2d Cir. Aug. 14, 2025), a racial discrimination claim by a football coach on behalf of a putative class against the National Football League (“NFL”) and certain member teams, the NFL sought to compel arbitration pursuant to the coach’s employment agreements and the NFL Constitution, which places the “full, complete, and final jurisdiction and authority to arbitrate” disputes in the hand of the NFL Commissioner. The trial court granted the motion to compel as to some of the teams but denied the motion as to NFL and the other teams; the Second Circuit affirmed. The NFL and the relevant teams have several months in which to petition the Supreme Court for discretionary review.
The Second Circuit made two key holdings in its decision. First, it determined that the relevant arbitration processes, the procedures and outcomes of which were solely in the discretion of the NFL Commissioner, “fail[ed] to provide an independent arbitral forum for bilateral dispute resolution” and did not sufficiently detail “the procedure to be used in resolving the dispute.” Based on these perceived deficiencies, and those concerning the selection of an ad hoc arbitrator by the NFL during litigation, the Second Circuit determined that the relevant contractual language was not actually an arbitration agreement and thus did not enjoy the presumption of enforceability or forum for compelling arbitration provided by the Federal Arbitration Act (“FAA”). Second, the Second Circuit held that the arbitration clause was void regardless of the application of the FAA. The Court invoked the “effective vindication” doctrine, which prevents parties from prospectively waiving their statutory rights when agreeing to arbitration clauses, the right here being access to an arbitral forum in which to bring his racial discrimination claim.
Davitashvili v. Grubhub Inc.
In Davitashvili, 131 F.4th 109 (2d Cir. 2025), the Second Circuit turned its attention to the formatting and scope of a consumer arbitration clause after users of Grubhub, Postmates, and Uber Eats brought suit for alleged antitrust violations and the defendants moved to compel arbitration. After the trial court denied the motions in full, the Second Circuit directed that the claims against Grubhub need not go to arbitration, but that an arbitrator was to make that decision as to the claims against Postmates and Uber Eats. Grubhub did not seek Supreme Court review of this decision.
To decide whether the plaintiffs assented to those terms when they placed orders, the Second Circuit began its analysis by examining how Grubhub presented its arbitration clauses to consumers; the plaintiffs did not dispute that they had agreed to the arbitration clauses of Postmates and Uber Eats. The Court ultimately determined that the presentation of the arbitration clause on both the Grubhub mobile app and website were sufficient to provide consumers with notice of the clauses. Judge Myrna Pérez, writing for herself only however, indicated that Grubhub’s presentation of its arbitration clause may be at the bounds of what was legally permissible, given how “chaotic” Grubhub’s web page was and how it was only “marginally less cluttered” than a web page that was found not to provide sufficient notice of its arbitration clause.
Next, the Court held that Grubhub’s arbitration clause placed the determination of whether the present dispute was arbitrable at all in the hands of the trial court, rather than an arbitrator. Because of different language in the Postmates and Uber Eats clauses, and because the plaintiffs had failed to show these “delegation clauses” were themselves unenforceable, the Second Circuit determined that the question of the arbitrability of the claims against these two defendants could be decided by an arbitrator instead of a court.
Finally, the Second Circuit held that Grubhub’s arbitration clause did not cover plaintiffs’ antitrust claims because, it reasoned, antitrust claims were not sufficiently related to the relationship between Grubhub and the plaintiffs. Judge Richard J. Sullivan dissented from this holding, arguing that the use of Grubhub by the plaintiffs was related to Grubhub’s market share and thus the plaintiffs’ antitrust claims.
Sudakow v. CleanChoice Energy, Inc.
Sudakow, No. 24-1988, 2025 WL 2457656 (2d Cir. Aug. 27, 2025), like Davitashvili, concerns the presentation of an arbitration clause. A consumer sued CleanChoice Energy, an energy supplier, in a class action alleging breach of contract and deceptive business practices. After CleanChoice moved to compel arbitration, the trial court denied the motion and the Second Circuit affirmed. CleanChoice will have the opportunity to petition for Supreme Court review.
In this case, the consumer signed an Enrollment Agreement that did not contain an arbitration clause and that indicated it could only be unilaterally amended by CleanChoice with 30 days’ notice and after an applicable change in law. Several weeks after it received the consumer’s signature, CleanChoice mailed her a Welcome Package and Subsequent Terms, the latter of which contained an arbitration clause. The Second Circuit observed that neither the package’s envelope nor its cover letter mentioned the Subsequent Terms, and that the consumer never signed the Subsequent Terms.
The Second Circuit held that these circumstances did not provide the consumer with inquiry notice of the arbitration clause within the Subsequent Terms document, as required by New York law. This was because the Subsequent Terms were presented too far from the moment and place where the consumer signed the Enrollment Agreement and because the arbitration clause was not presented in a conspicuous enough manner. It further held that the consumer never assented to the Subsequent Terms because they invited a signature, the Enrollment Agreement had not indicated a possibility that the Subsequent Terms would be sent so soon, and because mere receipt and payment for electricity was not sufficient to constitute assent.
Doyle v. UBS Financial Services, Inc.
Unlike the prior cases, Doyle, 144 F.4th 122 (2d Cir. 2025), focuses on the conduct of litigants while attempting to compel arbitration, rather than arbitration clause or procedures themselves. In Doyle, plaintiffs brought claims against UBS and certain individuals under the federal Investment Advisors Act and state law related to management of a trust. One of the individual defendants moved to dismiss, and UBS and another defendant joined the motion. After the motion was denied, UBS and the other defendant moved to compel arbitration. The trial court denied the motion and the Second Circuit affirmed, finding that the defendants had waived their right to arbitration based on this procedural history. UBS and the other defendant have several months to seek review by the Supreme Court.
In its decision, the Second Circuit determined that a party resisting a motion to compel need not show that a delay in invoking a right to arbitration caused prejudice—a change from prior Second Circuit law. Rather, relying on the recent Supreme Court case Morgan v. Sundance, Inc., 596 U.S. 411 (2022), the Second Circuit held that waiver occurs when a party acts inconsistently with a right to compel arbitration, regardless of the presence of prejudice to the other side. Using this new rule, the Court determined that UBS and the other defendant had waived their rights to arbitration by joining in the motion to dismiss, waiting until after it was decided to file a motion to compel arbitration, and otherwise not mentioning their intention to arbitrate until they filed their motion to compel.
Implications
For organizations that prefer to decide disputes via arbitration, these cases underscore the importance of treating every strategic decision concerning arbitration with care. Flores suggests that those that wish to streamline arbitration procedures should carefully consider applicable law before determining who the ultimate decision maker is on matters of substance and procedure. Davitashvili and Sudakow indicate that courts will continue to scrutinize the presentation of arbitration clauses, and that they are prepared to strike such provisions if the web pages containing them are too cluttered or if the courts are not otherwise convinced consumers have proper notice of the clauses and assented to them. Davitashvili further teaches that the wording of arbitration clauses matters and that an attempt to broadly apply an arbitration agreement may require particularly persuasive advocacy to be successful. Finally, Doyle emphasizes the importance of planning for arbitration early in a lawsuit to ensure that the right to compel arbitration is not waived and to properly account for the changing landscape of federal arbitration law.
Integrating Your College’s Title IX and Title VI Policies and Processes
As civil rights compliance becomes increasingly complex and federal scrutiny continues, colleges and universities should consider reevaluating having separate approaches to handling complaints of Title IX (sex discrimination and harassment) and Title VI (race, color, national origin, and shared ancestry discrimination and harassment).
While Title IX has more specific regulatory requirements than Title IX, laws and guidance in many states and recent federal guidance indicate that a response to Title VI issues using the Title IX model is generally favored as it offers increased process and uniformity. As a result, many colleges and universities have moved toward an integrated civil rights response model that unifies reporting, policies and procedures, investigations, and supportive measures for students, faculty, and staff that have experienced discrimination or harassment.
Below are some pros and cons to such an approach, and practical tips to guide implementation of a more uniform process:
Pros of an Integrated Response Model
Consistent Policies and Procedures: Promotes equitable treatment for students, faculty, and staff that have experienced discrimination or harassment based on a protected class.
Streamlined Case Management: Eliminates duplicative efforts and ensures all reports and complaints are handled according to standardized protocols.
Coordinated Support: Provides parties with more comprehensive resources and clearer communication, including access to supportive measures and guidance throughout the complaint process.
Improved Compliance: Facilitates monitoring of trends, documentation, and generation of reports for internal audits and in response to federal enforcement actions.
Proactive Risk Management: Positions institutions to respond effectively to inquiries or investigations from OCR and proactively identify areas for improvement.
Cross-Team Benefits: Equips teams in civil rights offices, student affairs, and HR to address intersectional issues and respond to the full spectrum of civil rights complaints with expertise and sensitivity.
Cons of an Integrated Response Model
Resource Demands: Revising policies and procedures, consolidating offices, and retraining staff requires time and financial resources.
Risk of Overshadowing Unique Issues: Title IX and Title VI each present distinct legal requirements. Combining responses may inadvertently diminish or, in the alternative, overemphasize the focus on certain issues.
Change Management: Transitioning to a unified model can encounter resistance from stakeholders accustomed to the existing structures, such as students. Effective communication and leadership are vital to managing concerns and ensuring buy-in.
Potential Bottlenecks: Centralization can create bottlenecks or delays, especially if the centralized office is understaffed or overwhelmed by high caseloads, impacting timely investigations and resolutions.
Institutions should weigh these considerations carefully when designing and implementing an integrated civil rights response.
Practical Steps for Implementation
If a college or university decides to integrate its Title VI and Title IX policies, procedures, and teams, transitioning to this model requires careful planning.
Institutions should begin by assessing their current policies and procedures to identify differences, gaps, and areas of overlap. Policies and procedures will need to be revised and consolidated under this model. Legal counsel should be engaged to ensure that the updated policies and procedures comply with Title VI, Title IX, state law, and best practices.
Creating a unified office, such a Civil Rights office or Office of Equal Opportunity, helps promote efficiency and accountability in this model. Ongoing staff training is essential, not only to ensure legal compliance but also to ensure a consistent approach to investigations and support services.
Institutions should also invest in clear, proactive communication with students, faculty, and staff to build trust and transparency around the new model. This includes updating websites, hosting informational sessions, and providing accessible channels for reporting concerns.