New York City Employers: It’s Time to Post Your Lactation Policy
Effective May 8, 2025, New York City employers with four or more employees must physically post a copy of their written lactation policy in an area accessible to employees as well as on its intranet if one exists.
This new posting obligation is an addition to the City’s requirement that covered employers maintain a written lactation room accommodation policy that must be provided to new employees upon hire and New York State’s requirement to provide the policy annually. The City enacted legislation on November 9, 2024, effective 180 days later, amending existing provisions to require covered employers to make their written policies readily available to employees.
In addition, the legislation amended the ordinance to reflect 2024 changes in New York State law (explained in detail here) requiring employers to provide at least 30 minutes of paid break time for breast milk expression. While the New York City ordinance covers only New York City employers with four or more employees, be aware that obligations for paid lactation breaks under New York State Labor Law § 206-c apply to all employers in New York State.
To be compliant, the lactation policy must clearly state that employees have the right to request a private space to express breast milk and outline the steps for making such a request. The policy should also inform employees that the employer will provide 30 minutes of paid break time for employees to express breast milk and shall further permit an employee to use existing paid breaks or mealtime if additional time is needed, as required under state law.
The mandatory 30-minute paid break is additional to any regular paid break time. Moreover, the law requires employers to allow employees to take further breaks (paid or unpaid) sufficient for their needs, unless doing so poses an undue hardship. These issues are addressed in updated FAQs released by the New York City Commission on Human Rights (NYCCHR) (see especially Qs 7-10). As a reminder, if providing a lactation room would pose an undue hardship, employers must inform employees of their obligation to engage in a cooperative dialogue with the employee to find a suitable solution.
Notably, as of this posting, the NYCCHR guidance page regarding lactation accommodations still links old versions of the downloadable model policies that do not reflect the law’s requirement for paid breaks. As such, employers may wish, at least at this time, not to rely on the City’s model policies in order to effectuate this requirement.
We are ready to help you develop a compliant lactation policy tailored to your needs and guide you through the new posting requirement. The following chart summarizes the State and City requirements regarding posting and distributing the policy:
Posting/Distribution
NYS
NYC
Distributing upon hire
X*
X*
Distributing annually
X
Distributing upon return from parental leave
X
Physical posting of policy at workplace
X
Electronic posting of policy
X
* New York City-based employers must also distribute a Notice of Pregnancy Accommodations at Work poster to new hires. If available, this poster must be provided in the employee’s native language.
Elizabeth A. Ledkovsky contributed to this article
Workplace Strategies Watercooler 2025: Top Complex ADA Issues [Podcast]
In this installment of our Workplace Strategies Watercooler 2025 podcast series, the speakers from our interactive Accommodations Workshop offer an information-packed look at complex issues under the Americans with Disabilities Act (ADA). Jamie Brod Ashton (shareholder, Dallas) kicks things off by highlighting common mistakes employers often make during the interactive process, including failing to recognize requests for an accommodation, neglecting to conduct individualized assessments, and providing accommodations that remove essential job functions. Charles Thompson (shareholder, San Francisco) and Sheri Giger (shareholder, Pittsburgh) clarify the factors that may justify a failure to accommodate. Charles, who co-chairs the firm’s Leaves of Absence/Reasonable Accommodation Practice Group, and Sheri share examples of operational costs and discuss the nuances of indefinite leave. Michael Riccobono (shareholder, Morristown) wraps up the conversation with insights on “hidden” disabilities, the individualized assessments required to determine whether an employee poses a direct threat to themselves or others, and the right to bring service animals into the workplace.
Achieving DEI Compliance…On Your Website
Diversity, Equity & Inclusion (DEI) efforts, and the term itself, have become increasingly scrutinized and subjected to legal challenges by both government and private actors, making an understanding of the current DEI climate and applicable law critical to organizations advancing efforts to support DEI initiatives. DEI focuses on the elimination of barriers to opportunities for all to achieve goals of fair treatment, which should have the effect of expanding the demographics of an organization. The current White House administration, with the stated purpose of providing for fair treatment and equal protection of all people, has rescinded or limited certain previous executive orders and promulgated policies against “illegal” DEI but has not defined what “illegal DEI” includes. As a result, many universities and businesses that rely on federal funding have curtailed their efforts out of fear that the administration may consider their organization’s initiatives “illegal.” However, you can have compliant DEI initiatives referenced on your website that do not violate the law and are not contrary to the current administration’s objective to provide fair treatment and equal protection for all.
It is not illegal for universities and businesses to prioritize increasing diversity. However, “diversity” should be construed to be inclusive of, and offer opportunities to, all races, genders, and backgrounds rather than interpreted myopically. Neither the rescission of executive orders from previous administrations nor the issuance of new executive orders by the current administration gives employers and businesses the right to discriminate. Discrimination against anyone based on an immutable characteristic (such as race) is illegal. Only Congress can repeal current federal law. None of the current civil rights laws have been touched, including, without limitation, those passed following the Civil War and during the Civil Rights Movement of the 1960’s (e.g., Section 1981 of the Civil Rights Act of 1866 and Title VII of the Civil Rights Act of 1964, both of which remain the applicable law today). So, consult your attorney and continue to abide by the law.
Key Considerations for Current State of the Law
Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) (“EO 14151”). On January 20, 2025, the current administration published EO 14151, which rescinded EO 13985, a Biden-era executive order titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” EO 13985 required federal agencies and departments to implement “Equity Action Plans” to identify and remove barriers to equal participation in and access to federal benefits and services, barriers to benefiting from federal agency procurement and contracting programs, and other government programs. EO 14151 terminates the requirement for federal agencies to prepare and submit these plans. EO 14151 also requires federal agencies to terminate all “equity-related” grants or contracts that were intended to assist the agencies in meeting their DEI objectives and all DEI or DEIA performance requirements for employees, contractors, or grantees. Certain aspects of EO 14151 are subject to current litigation, which should be monitored closely. You can read here to review highlights of some of the ongoing litigation.
Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) (“EO 14173”). On January 21, 2025, the current administration published EO 14173, which rescinds EO 11246 (a 60-year-old civil rights era directive signed by President Lyndon B. Johnson). EO 11246 (and its subsequent amendments through additional executive orders) required federal contractors and subcontractors to refrain from discrimination in hiring, promotion, compensation, and employment practices based on race, color, religion, sex, sexual orientation, gender identity, and national origin. EO 11246 also required those contractors to engage in affirmative action practices for women and minorities. EO 14173 eliminates all affirmative action obligations with respect to women and minorities, and it requires federal contractors and subcontractors “to certify” that they do “not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” EO 14173 currently is in ongoing litigation, which should be followed closely. Employers should note that Title VII of the Civil Rights Act of 1964 is still the law and should ensure that they are complying with the equal employment opportunity requirements therein. You can read here for a more detailed breakdown of EO 14173.
The current administration has stated that it will continue to follow the law. Federal law, such as Title VII, prohibits (unless a clear illustration of historic disparate treatment can be shown) “affirmative action” and, by extension, DEI programs that provide any advantage to any person based on race, gender, or other immutable characteristic. The guidelines published by the Equal Employment Opportunity Commission state that discrimination based on race, color, religion, sex, or national origin violates Title VII (as stated in the Supreme Court case McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 12 EPD (1976)). For more information on how your company can lawfully promote equal opportunity considerations on your website, always consult with a labor & employment attorney.
Key Considerations: Applicable/Current Law
Section 1981 of the Civil Rights Act of 1866. All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, to be parties, to give evidence, and to receive the same full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. The application of the law protects all persons from discrimination in contracting based on race.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex (including pregnancy), and national origin. It gives a private right of action to employees to sue their employers for violating the law. Title VII is broader than Section 1981 (referenced above) and remains the principal employment anti-discrimination law in the United States.
The concept of quotas (i.e., identifying a number of persons of a specific race for employment or enrollment) has been explicitly forbidden under federal law for some time. The concept associating quotas with illegal conduct was further reemphasized within EO 14173. Therefore, no DEI initiative should encourage or be premised upon quotas.
The following recommendations are worthy of consideration:
Mission Objectives
Focus on the elimination of barriers and creating opportunities for all. “Inclusion” is a keystone of DEI, and when you eliminate barriers, you are far more likely to include everyone — whether in a decision-making role or when taking steps to advance organizational priorities.
When focusing on diversity, emphasize seeking diversity of viewpoints on your website, concerning the primary subject area. The point of DEI is not simply to have a broad sector of races and ethnicities but to have different views and perspectives, which often emanate from differences between individuals (whether that be due to environment or otherwise — e.g., urban versus rural, first-generation college student, or economically disadvantaged). You also should express how your DEI efforts remove barriers to entry and barriers to success for your target audience.
DEI efforts and initiatives should be focused on ensuring the organization’s systems, policies, and processes are intentional, equitable, fair, and structured in a manner to minimize bias. A systems-focused approach is one that helps everyone but also goes a long way to close gaps and remove barriers for the most marginalized. In this manner, the focus is on the macro and not on specific programs, which, if not made accessible to all, can run afoul of non-discrimination law.
Application Process
If you have an application for admissions, grants, or scholarships on your website, create a prompt that asks the applicant to explain how they plan to effect [insert your diversity criteria] change in the U.S. and/or how they may have felt subjected to discriminatory practices in relation to the purpose of the application. Do not seek information on a particular applicant’s immutable characteristics or premise a selection or award on this information.
Require application candidates to discuss their individual, historical circumstances and how they have affected their current situation rather than have your company, university, or organization make assumptions associated with historical circumstances based on immutable characteristics. This step works to your organization’s advantage because it provides a deeper look into an applicant’s individual circumstance and makes no assumption based on immutable characteristics, which is the cornerstone of illegal discrimination.
Use of Language
Consider how the name of your organization can help or hinder your outreach. For example, affinity groups should always be open to all. However, many affinity groups utilize an immutable characteristic in their name (e.g., Black Law Students Affinity Group). Adding a reminder on multiple pages of your website and application materials that the affinity group is open to all could be helpful in reducing legal risk. Stating that a program is being presented by “[Diversity X Organization]” is legal, whereas stating that a program is “only” for Black or White people is not. When naming a new organization, consider the intended demographic that you are trying to reach when selecting the name of the organization and how that may impact your legal risks.
Remember, diversity of ideas and approaches is more fulsome where anyone can be a member of an organization, without regard to an immutable characteristic (e.g., race or ethnicity).
Note on your website that the application process is “open to all,” including by emphasizing this fact and by noting the process is an equal opportunity for all persons irrespective of race, religion, gender, etc.
For some compliance initiatives, DEI has been used as an umbrella term to capture compliance obligations monitored by human resources departments. For example, under the Americans with Disabilities Act, employers and places of public accommodation are obligated to ensure persons with disabilities can access buildings and resources, and barriers and impairments to successfully working or accessing public locations are eliminated. Some businesses began to group these actions together and label them holistically as DEI. If you feel that the term “DEI” has become too incendiary, then consider language for the policy that is more descriptive, such as “improving success” or “removing barriers” and the like.
Finally, it goes without saying: Follow the law. If you have questions on what is legal or problematic, consult a lawyer, and remember that the laws in your jurisdiction and new executive orders are constantly changing.
EEOC EEO-1 Reporting for 2024: Coming Soon
Key Takeaways
The 2024 EEO-1 Report is expected to open May 20 pending approval of the instruction book and justification.
The EEO-1 is expected to eliminate the option to report non-binary employees.
Employers should confirm how their system collects data on the sex of employees to comply with binary-only gender reporting.
On April 15, 2025, the Equal Employment Opportunity Commission (EEOC) submitted its 2024 EEO-1 Component 1 Instruction Booklet and justification to the Office of Information and Regulatory Affairs (OIRA), containing potential changes that may impact employers.
This booklet indicates that 2024 EEO-1 Component 1 reporting will begin on Tuesday, May 20, 2025, with the deadline to file on Tuesday, June 24, 2025. The 2024 report will cover employee data from the payroll period between October 1, 2024, through December 31, 2024. These reporting dates remain tentative as OIRA must approve the booklet, which can take 30-60 days from the date of submission. Final dates will be posted on the EEO-1 reporting page.
Understanding the EEO-1 Reporting Requirements
The EEO-1 is an annual requirement that certain employers submit demographic workforce data, including information on race, ethnicity and sex by job group. The EEO-1 report is required for employers with 100 or more employees and employers with less than 100 employees who are related to other entities, such that combined, there are over 100 employees.
Changes are Expected to the 2024 EEO-1
Executive Order 14168: Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government could have an impact on EEO-1 reporting, particularly concerning the recognition of sex. Executive Order 14168 reinforced the federal government’s stance on recognizing only two sexes—male and female.
In recent reporting periods, employers were instructed to report non-binary employees by footnote. EEOC is seeking approval to remove the option for employers to voluntarily report on employees who have self-identified as “non-binary” in order to comply with Executive Order 14168. This change would mean that the booklet’s instructions on “Reporting by Sex” would be restated to: “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 Employers Should Do Now?
To ensure compliance with the new EEO-1 reporting requirements, employers should review and update their data collection processes. This includes auditing current systems to ensure they can accommodate the reporting of sex as needed. Employers should also stay informed about any updates or clarifications issued by the EEOC regarding the implementation of these changes.
Time Is Money: A Quick Wage and Hour Tip . . . Contractual Indemnification May Not Guard Against FLSA Claims
The complex web of federal and state wage and hour laws create potentially devastating risk of exposure for employers.
Years of possible liability for yet unknown claims, liquidated damages, shifting attorneys’ fees, not to mention the risk of class or collective suit, can quickly transform seemingly minor and technical irregularities into expensive complications. And for companies that partner with other entities to meet their staffing needs, resolving this risk of liability is a critical piece of their business operations.
Quite often, the quick solution for this concern is through a traditional business arrangement: contractual indemnification. Shifting risk of loss via contract is fairly standard, especially as courts generally enforce the unambiguous terms of the parties’ agreement. Yet employers should take note of a concerning trend among courts across the country, which have in some cases refused to enforce indemnification agreements in Fair Labor Standards Act (“FLSA”) matters on public policy grounds.
How Did We Get Here?
Courts ordinarily steer clear of interrupting the unambiguous contractual agreements of sophisticated business entities, so what is motivating this judicial scrutiny of indemnification clauses in FLSA matters? Much can be traced back to the Second Circuit’s decision in Herman v. RSR Sec. Servs. Ltd., which rejected an interpretation of the FLSA that would have provided a statutory right to indemnification or contribution among co-employers.[1]
In Herman, a putative co-employer who had been found liable for back wages following a bench trial sought to shift those losses to his co-defendants, whom he claimed were the plaintiff’s actual employer. In reviewing this claim, the Second Circuit looked to the text of the FLSA, its overarching intent, its remedial mechanisms, and the law’s statutory history. None counseled in favor of creating a new statutory obligation among co-employers. The law was silent as to any right to contribution or indemnification, employers were clearly not the class for whose benefit the FLSA was enacted, and no evidence in the legislative history of the statute favored the judicial creation of this new statutory right. Accordingly, the Second Circuit unequivocally held that “there is no right to contribution or indemnification for employers held liable under the FLSA.” Id. at 144.
More than 20-years after Herman, the Ninth Circuit reached the same conclusion.[2] In rejecting yet another attempt to develop a statutory reading of the FLSA that would have permitted a claim for contribution or indemnification, the Ninth Circuit highlighted how “Congress, not the courts” held responsibility for developing this type of remedy. Following this “cautious” approach toward statutory interpretation, the Ninth Circuit similarly “decline[d] to find an implied cause of action for contribution or indemnification under the FLSA.” Id. at 1105.
How Does this Impact Contractual Obligations?
Although the Second and Ninth Circuit limited their holdings to statutory claims to indemnification under the FLSA—and notwithstanding the judicial “cautio[n]” recognized in their analysis—district courts across the country have not been so restrained. Only two years after Herman, district courts in New York began expanding the rejection of a statutory right to contribution under the FLSA to also negate contractual indemnification agreements. In Gustafson v. Bell Atl. Corp., the defendants sought to enforce an indemnification clause that would have required a putative co-employer to pay for any losses incurred as a result of their violations of the FLSA.[3] The defendants in this matter emphasized that their claim was “purely one for damages for breach of contract by a third party,” and thereby did not fall within the gambit of Herman. The Court disagreed.
Irrespective of the contractual basis for indemnification, the Court held that “defendants’ attempt to recover damages from [the co-employer] for overtime violations is an attempt to receive indemnification for FLSA liability.” Id. (emphasis added). Whether the putative co-employer was responsible for the alleged overtime violation was of no consequence. In the Court’s view: “[a]llowing indemnification in cases such as this would permit employers to contract away their obligations under the FLSA, a result that flouts the purpose of the statute.” Id. Accordingly, the indemnification clause was held unenforceable for purposes of any FLSA-related damages.
Are Courts Uniform In this Approach?
Unsurprisingly, courts across the country are divided on this issue. Some have adopted the public policy arguments noted above, holding that contractual indemnification of FLSA damages would give employers little reason to comply with the statute and run contrary to the FLSA’s statutory purpose.[4] Others have rejected this premise, and distinguished indemnification claims taken against employees (which are prohibited on public policy grounds) from contractual agreements involving sophisticated business entities that should be enforced.[5] Still others have permitted contractual indemnification claims without even opining on this brewing public policy dispute; in these cases, the parties’ unambiguous contractual intent is sufficient to enforce their agreement.[6]
As one court succinctly stated: “[f]or each FLSA case that permits contractual indemnity claims, however, there is a case that prohibits the same.”[7]
How Should Employers Address This Uncertainty?
The lack of any uniformity in this regard, and the policy-based rationale for negating these provisions, presents a difficult problem for employers: an inability to easily allocate risk and develop protection from exposure.
But companies can still take affirmative steps to address this concern. First and foremost, companies must identify potential sources of liability, both internally and through their arrangements with business partners. Indemnification agreements may not provide sufficient protection against FLSA claims, and identification of any vulnerabilities can help dictate how best to allocate appropriate business costs. Next, a comprehensive wage and hour audit of these internal and external pay practices can help quantify risk and potential loss. This will help business leaders maintain compliance with federal and state wage and hour laws, explore remediation opportunities to resolve problems prospectively, and dictate how to structure relationships with business partners in order to reduce the risk of joint liability. Finally, companies and their counsel should carefully consider the forum of any brewing FLSA dispute, in order to gauge the likelihood of success on any indemnification claim.
Judicial uncertainty notwithstanding, these steps can help business leaders identify and quantify risk while also achieving the primary goal of any indemnification clause: safeguarding the company against potential loss.
ENDNOTES
[1] 172 F.3d 132 (2d Cir. 1999).
[2] Scalia v. Employer Solutions Staffing Grp, LLC, 951 F.3d 1097 (9th Cir. 2020).
[3] Gustafson v. Bell Atl. Corp., 171 F. Supp. 2d 311 (S.D.N.Y. 2001).
[4] Goodman v. Port Auth. of N.Y. & N.J., 850 F. Supp. 2d 363 (S.D.N.Y. 2012); Scalia v. MICA Contracting, LLC, 2019 WL 6711616, at *4 (S.D. Ohio Dec. 10, 2019), report and recommendation adopted, 2020 WL 635908 (S.D. Ohio Feb. 11, 2020).
[5] Varnell, Struck & Assocs., Inc. v. Lowe’s Cos., 2008 WL 1820830, at *10-11 (W.D.N.C. Apr. 21, 2008); Plummer v. Rockwater Energy Sols. Inc., 2019 WL 13063612, at *4 (S.D. Tex. July 2, 2019) (“The court finds that no controlling authority bars Rockwater’s claims for contractual indemnity and contribution under the FLSA.”).
[6] Bogosian v. All Am. Concessions, 2011 WL 4460362, at *4 (E.D.N.Y. Sept. 26, 2011).
[7] Robertson v. REP Processing, LLC, 2020 WL 5735081, at *5 (D. Colo. Sept. 24, 2020).
Ready for the Recent Arrival? Pregnant Workers Fairness Act is Here and Kicking
As everyone in Human Resources knows by now, the Pregnant Workers Fairness Act (PWFA) requires employers to reasonably accommodate employees because of pregnancy and conditions related to pregnancy. In case you missed it, we blogged about this here. The EEOC has filed lawsuits to enforce employee rights under the PWFA and has settled cases for pregnant workers. While these were all filed under the prior administration, the PWFA is the > law of the land and employers need to be ready.
Make Sure Your Leadership Knows Pregnant Workers Have a Legal Right to Accommodations
The standard for a reasonable accommodation under the PWFA is different than the standard under the ADA. Make sure your front-line supervisors and managers know that you have a heightened responsibility to pregnant workers who need accommodations. While your supervisors do not need to be PWFA experts, they do need to understand that if a pregnant worker is having trouble fulfilling her job duties, they should call Human Resources.
Human Resources professionals need to be ready as well. Unlike the ADA, reasonable accommodations under the PWFA:
Could require that you remove an essential function of a job temporarily. If you have light-duty positions, you many need to make those available to your pregnant employees.
Are temporary, which would be up to the 40 weeks of the pregnancy.
Like the ADA, if an employee is not eligible for FMLA leave (or any other leave under company policy or state law), you likely have an obligation to provide unpaid leave under the PWFA. However, leave to accommodate pregnancy is a last resort.
Check Your Policies and Procedures
In defending an EEOC charge of discrimination, you will want to tell the EEOC that you have a policy that shows your good faith. With that in mind:
Be sure your EEOC policy mentions that you prohibit discrimination based on pregnancy. Saying that you prohibit discrimination based on sex probably covers it, but it may be helpful to add pregnancy to your policy.
Consider having a separate policy addressing the PWFA. A policy that clearly outlines how an employee can request a PWFA accommodation can be great evidence if an employee claims she did not know she could request one.
Given the differences between the PWFA and the ADA, you may want to consider having separate forms to document the PWFA process.
Takeaways
This is a new law and it is complicated. Make sure your front-line supervisors are staying in touch with Human Resources. There is no one size fits all approach, so Human Resources should seek legal advice when necessary.
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President Trump Nominates Assistant U.S. Attorney Panuccio to Serve as EEOC Commissioner
In what may provide the U.S. Equal Employment Opportunity Commission (EEOC) the ability to move forward with implementing policy changes, issuing new guidance, and rescinding other guidance, President Donald Trump nominated Brittany Panuccio, currently an assistant U.S. attorney in the Southern District of Florida, to serve as a commissioner. If confirmed, Panuccio would give the EEOC a quorum, which it has lacked since the president fired two sitting Democratic commissioners in January 2025.
Quick Hits
President Trump nominated Brittany Panuccio, an assistant U.S. attorney in Florida, to serve as an EEOC commissioner.
The EEOC currently has only two commissioners, one less than needed for a quorum.
Once the EEOC has a quorum, it will be able to engage in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that advances the administration’s agenda.
By statute, the EEOC is composed of five political appointees: a chair, vice chair, and three commissioners. Title VII of the Civil Rights Act of 1964 dictates that no more than three commissioners may be from the same political party, and once confirmed, they serve five-year terms on the Commission. Thus, in addition to the EEOC’s acting chair, Andrea Lucas, if Panuccio is confirmed, the president can nominate another Republican to serve as a commissioner.
Further, Title VII demands that for there to be a quorum at the agency, there must be three active commissioners. Thus, Panuccio’s confirmation will resolve the EEOC’s current dilemma, i.e., being unable to vote on topics such as official guidance, policies, regulatory proposals/rulemaking, subpoena enforcement, and litigation (although by memorandum of understanding, much of the litigation decision-making has been delegated to the general counsel in the absence of a quorum).
We anticipate, based on statements made by Acting Chair Lucas and other informal guidance, that once the Commission has a quorum, it will make certain types of charges, litigation, and other policy matters a priority. This prioritization includes:
focusing on investigating and litigating with an expanded definition of what constitutes an adverse action when considering employer diversity, equity, and inclusion (DEI) programs (e.g., where a DEI program results in one protected class failing to receive the same or similar mentorship or feeling ostracized or discriminated against because of such programs);
eliminating systemic investigation and litigation of otherwise neutral employer policies that may have a disparate impact on a protected class;
eliminating recognition of “gender identity” as it relates to the EEOC’s sexual harassment guidance and similar guidance, particularly concerning restrooms, locker rooms, sleeping quarters, and other sex-specific workplace facilities, which, in the view of Acting Chair Lucas, impinges on the rights of women;
eliminating existing EEOC policy, guidance, and regulations associated with abortion as a pregnancy-related condition under the Pregnant Workers Fairness Act; and
an increased focus on investigation and litigation of employment discrimination based on religion or national origin (e.g., Judaism and American), race (particularly those employees who feel preferential programs exclude them in the name of DEI), and sex (particularly from those employees who think that the focus on gender identity, transgender rights, and sexual orientation has impinged on their rights).
The lack of a quorum has prevented the EEOC from investigating charges consistent with Acting Chair Lucas’s perspective concerning various active agency guidance (several of which she condemned in public statements), enforcing administrative subpoenas (due to a 2024 delegation of authority), pursuing noncontroversial, nonsystemic, noncostly litigation (due to a 2021 continuing resolution); and seeking dismissal of certain cases approved under prior EEOC leadership.
More importantly, the lack of a quorum has kept the Commission from engaging in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that furthers the current administration’s agenda. Such a lack of quorum has seemingly caused confusion and a state of “unknown” in the employment law community (given Acting Chair Lucas’s statements without the proper quorum to push such agenda items), as well as inhibited the EEOC from voting to pursue controversial, costly, and systemic lawsuits.
If Panuccio is confirmed, the EEOC will be able to discuss and vote on various matters. While we do not know how Panuccio will vote, we expect significant changes in policy and internal operations within the EEOC that are consistent with the areas identified above. Employers can expect the EEOC to begin working on rescinding guidance and policies that run afoul of the current administration’s agenda, adopting updated guidance and policies, and proposing new and updated regulations. Further, there may be a change in the types of “priority” cases within the EEOC’s enforcement and litigation divisions.
While the EEOC has no authority to overturn case law, it certainly can become a burden on employers’ resources during investigations of charges of discrimination.
By continuing to ensure policies and practices are lawful and compliant with antidiscrimination statutes, employers should be able to achieve the appropriate balance in the days to come.
When Emotional Support and Service Animals Fall Short: ADA Lessons From Fisher v. City of Lansing
On April 29, 2025, in Fisher v. City of Lansing, the U.S. District Court for the Western District of Michigan ruled that the City of Lansing did not fail to accommodate an employee’s request to bring an emotional support dog to work. The court found that the proposed accommodation failed to address a key obstacle that prevented the employee from performing an essential job function.
This decision has broad implications for employers facing an increase in accommodation requests related to mental health conditions and the presence of service or emotional support animals in the workplace.
Quick Hits
Under the Americans with Disabilities Act (ADA), an employee must propose a reasonable and necessary accommodation that addresses a key obstacle that prevents the employee from performing a necessary function of the position.
The ADA does not include emotional support animals in its definition of “service animals.”
Where an employee admits he or she can perform the essential job functions without the requested accommodation, even if not optimally, it weakens any claim that the accommodation is necessary.
Background
Aaron Fisher, a firefighter for the City of Lansing, Michigan, suffers from post-traumatic stress disorder (PTSD). Fisher requested permission to bring a service dog to work, stating that his symptoms worsened while on emergency calls. Although the City of Lansing required employees to submit a reasonable accommodation request form with medical documentation to Human Resources (HR), Fisher bypassed this policy. Fisher submitted his request only to his battalion chief, who initially approved it. However, HR denied the request after discovering the arrangement and determining that Fisher had provided insufficient documentation.
Fisher later submitted another request, this time including a letter from his physician stating he needed an “emotional support animal during work hours.” The city again denied the request. Fisher responded by filing a lawsuit under the ADA and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA), claiming discrimination and retaliation.
In its motion for summary judgment, the city argued Fisher did not need a service dog to perform his essential job functions. The City of Lansing also contended that the presence of a dog could hinder Fisher’s ability to respond quickly to emergencies, that the dog might not always remain under Fisher’s control, and Fisher had not demonstrated a medical necessity for the accommodation.
The Court’s Decision
The court granted summary judgment in the city’s favor, holding that Fisher had not shown that a service dog was necessary for him to perform his essential job function. Fisher’s own testimony indicated he could perform his duties—though not optimally—without the dog. Additionally, the letter from Fisher’s psychologist recommended an emotional support animal but did not state that he could not perform his job without it. While the court did not decide whether Fisher’s dog qualified as a “service animal” under the ADA, it pointed out that the ADA authorizes “service animals” but not “emotional support animals.”
The court also observed that Fisher received a positive performance evaluation and had accrued substantial sick leave and overtime hours after the city denied his accommodation request. These facts supported the conclusion that Fisher could perform his job without the accommodation. Ultimately, the court found Fisher had not met his to prove the dog was a necessary accommodation and dismissed the case.
Key Takeaways for Employers
This case highlights several important considerations for handling ADA accommodation requests:
Under EEOC guidance, employers may require employees to provide adequate medical documentation to support accommodation requests and follow a consistent formal review process if the “requirements are job related and necessary for the conduct of the business.”
Distinguishing between service animals and emotional support animals can be useful. ADA regulations authorize accommodations related to service animals, but not emotional support animals.
Assessing whether the accommodation is necessary for the employee to perform essential job functions is valuable. If the employee can perform those duties without the accommodation, it may not be required.
Employers may also want to communicate clearly with employees about the status of their accommodation requests and provide documented explanations for any denial.
Employers that consider these factors may be more able to effectively manage accommodation requests and remain compliant with the ADA.
ADA’s Interactive Process May Require Employers to Follow Up with Third Parties
A recent press release from the U.S. Equal Employment Opportunity Commission (EEOC) announcing a $250,000 settlement and consent-decree resolution of a disability discrimination lawsuit may serve to remind employers of the importance of thoroughly evaluating an employee’s requested reasonable accommodation. This could involve following up with third parties, such as a vocational counselor or the manufacturer of assistive systems and equipment.
Quick Hits
The EEOC’s recent settlement of a lawsuit related to a company’s alleged failure to accommodate a blind employee’s request to use a screen reader app may highlight for employers the importance of thoroughly evaluating reasonable accommodation requests.
The EEOC’s lawsuit alleged that the employer had violated the Americans with Disabilities Act by failing to take reasonable steps to facilitate the employee’s use of screen reader software (despite the employer’s having access to available resources and support for the technology) and firing the employee because she required a reasonable accommodation.
The settlement may serve as a reminder to employers of the value of engaging in a meaningful interactive process that considers available resources when addressing accommodation requests, especially those involving new technologies.
Background
As detailed in the EEOC’s federal complaint, The Results Companies, LLC, hired a blind employee as a telephonic customer service representative for its call center—a role the employee had served in for sixteen years with other employers. Because of her blindness, the employee required a screen reader application, Job Access with Speech (JAWS), to navigate computer desktops and websites.
According to the EEOC, upon her hire by the company, the employee requested to use JAWS as an accommodation for her disability. She provided a copy of JAWS software supplied to her by Texas Workforce Solutions – Vocational Rehabilitation Services (TWS-VRS), a state-run vocational rehabilitation program that assists individuals with disabilities in finding and keeping employment. This software was intended to be installed on the company’s computers for the employee’s use. The company’s IT specialist, who was not familiar with JAWS, found the software to be out of date. The company asked the employee to resign from employment until she obtained the latest version of the software, at which point she would be rehired.
Several months later, after the employee’s TWS-VRS counselor confirmed with the company that the upgraded JAWS software would be compatible with its systems, TWS-VRS purchased the upgraded software and provided it to the IT specialist. At the same time, the employee gave contact information for her TWS-VRS counselor and the publisher of the JAWS software to assist with the installation at no cost to the company.
However, when the employee returned to work the following month, the software still had not been installed, and no one had ever contacted the software publisher. The supervisor and the IT specialist were given two hours to attempt to set up JAWS, but they were unsuccessful. Although the IT specialist told the site operations director (who was the supervisor of the employee’s supervisor) that he thought the compatibility issues could be resolved with more time, that was not permitted. Instead, the employee was discharged from employment.
What the ADA Requires
The Americans with Disabilities Act (ADA) requires employers, absent an undue hardship, to provide reasonable accommodation to employees with disabilities to enable them to perform their essential job functions and enjoy the privileges and benefits of employment. According to the EEOC, an undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. EEOC guidance provides that as part of the reasonable accommodation obligation, employers and employees should engage in an interactive process by which the employer may obtain information about the employee’s work-related limitations and the parties can explore possible accommodations.
The EEOC’s Lawsuit
The EEOC brought suit in federal court on the employee’s behalf, asserting that the company had failed or refused to accommodate the employee’s disability. The EEOC contended that providing her with the use of the JAWS software would not have caused an undue hardship, and that the company failed to avail itself of free and easily accessible resources to resolve compatibility issues with the software that would have allowed the employee to perform her essential job functions.
In announcing the settlement, EEOC district director Travis Nicholson stated, “It is important for employers to meaningfully participate in the interactive process once an employee requests a reasonable accommodation and gather information specific to the situation at hand, even if they may not be familiar with the requested accommodation.” Specifically, regarding the use of software as a reasonable accommodation, EEOC trial attorney Alexa Lang added, “Employers must meaningfully assess their technical capabilities and available resources.”
What Does This Mean for Employers?
This settlement highlights at least two instructive points for employers to consider when facing requests for reasonable accommodation that may be unfamiliar to them. First, relying on tried-and-true ways of performing essential job functions may not always be an adequate defense against an ADA failure-to-accommodate claim, so a thoughtful and thorough exploration of the proposed accommodation may be in order, including by contacting outside resources provided by the employee. This may be even more important when the accommodation involves new technologies. Second, failing to tap available assistance or put adequate time and effort into trying to make technology work can leave an employer open to liability under the ADA.
Issuer Retreats From Racial Share Allocation Scheme
In February, I wrote about a proposed offering that involved a racially based share allocation scheme. See May Corporations Allocate Shares Based On Race, Gender, Or Ethnicity? Last month, it appeared that the offering was stalled at the Securities and Exchange Commission. See Intentionally Discriminatory Public Offering Stalled At The SEC. Recently, the company, Bally’s Chicago, Inc., disclosed that it intends to proceed with the offering. However, now the company says in an amended registration statement that it intends” to provide preferential allocations of Class A Interests to City of Chicago residents and Illinois residents during this offering”.
The company’s change of plans appears to be in response to litigation, which it describes in Note 14 to its Consolidated Financial Statements:
On January 29, 2025, the American Alliance for Equal Rights and certain other individuals filed a complaint against the City of Chicago, certain members of the Illinois Gaming Board, and the Company, alleging that the Class A Qualification violates federal laws and seeking, among other remedies, permanent injunctions to prevent the Illinois Gaming Board members from enforcing 230 ILCS 10/6(a-5)(9), to allow shareholders to sell their Class A Interests to white males, to mandate the rescission of the Host Community Agreement (“HCA”), and to require the rescission of shares sold under the Class A Qualification Criteria. In addition, on January 30, 2025, a complaint was filed against the City of Chicago (including the Mayor and Treasurer in their official capacities), certain members of the Illinois Gaming Board, and the Company, also alleging that the Class A Qualification violates federal laws and seeking, among other remedies, permanent injunctions to prevent the implementation of the HCA’s requirements for minority and woman ownership in the Company, and to prevent the exclusion of “otherwise qualified individuals” from participating in the Company’s ownership, Board, or employment. On January 31, 2025, an emergency motion was filed for preliminary injunction and temporary restraining order, seeking to preclude the closing of the offering while the case proceeds on the merits. On February 6, 2025, the court denied the plaintiffs’ request for a temporary restraining order to enjoin this offering.
The Company expects to incur substantial costs defending this lawsuit and if any person were to bring such a lawsuit against the Company in the future, the Company could incur additional substantial costs defending against any additional lawsuits. In addition, the time and attention of the Company’s management could be diverted from the business and operations. Furthermore, in the event that a court were to find the Class A Qualification Criteria to be invalid or unconstitutional, the Company could be found liable for monetary damages against the plaintiffs and the HCA could be terminated, which could adversely affect our ability to operate our casinos and could materially adversely affect our business, financial condition and results of operations.
It will be interesting to read any SEC staff comment letter on this issue.
Spring 2025 Brings Changes to Minnesota Contractors’ State Affirmative Action Requirements
The Minnesota Department of Human Rights (MDHR) recently updated several documents on its website for Minnesota government contractors, including the workforce certificate application, affirmative action program template (now “Compliance Plan”), annual compliance report (ACR), ACR instructions, and nondiscrimination poster. These changes were presumably made to minimize conflict with President Donald Trump’s executive orders concerning affirmative action and diversity, equity, and inclusion (DEI) programs.
Quick Hits
MDHR has revised multiple compliance-related documents for Minnesota government contractors.
Key changes include new terminology, workforce certificate application form signature requirements, and more structured reporting periods for annual compliance reports.
An annual compliance report must be submitted to MDHR each year, even if the Minnesota contractor does not currently hold a state government contract.
Background
Companies contracting with Minnesota state departments and agencies, certain metropolitan agencies, and the University of Minnesota must obtain a workforce certificate of compliance from MDHR if they have a Minnesota government contract that exceeds $100,000 and they have at least forty full-time employees in Minnesota or in the state of their primary place of business. Contracts with Minnesota cities, counties, townships, and other political subdivisions must exceed $250,000. Workforce certificates are required whether the company’s primary place of business is inside or outside Minnesota.
To obtain a workforce certificate, a Minnesota contractor must complete the workforce certificate application form, submit a Minnesota-compliant compliance plan, including a workforce and utilization analysis (WUA) and availability and underutilization analysis (AUUA), and pay a $250 application fee. Once received, the workforce certificate is good for four years and is tied to the contractor, not to a particular contract. Therefore, Minnesota contractors are not required to obtain a new certificate for each state contract exceeding $100,000 or local government contract exceeding $250,000. Contractors receiving a workforce certificate must post MDHR’s nondiscrimination poster at all establishments covered by the workforce certificate.
Each year during the four-year certification period, contractors must submit an annual compliance report, which is due to MDHR on the certificate’s anniversary date. Failure to submit an acceptable ACR may result in revocation of the workforce certificate and the inability to enter into state government contracts until an acceptable ACR is submitted and certificate reinstatement is requested and granted by MDHR’s commissioner. State government contractors are also subject to compliance reviews by MDHR.
Changes to MDHR’s Workforce Certificate Application Form
MDHR’s workforce certificate application form was updated in March 2025 and no longer references the Office of Equity and Inclusion for Minnesota Businesses. It also deleted language that Minnesota contractors must work to ensure that Minnesota’s workforce reflects the state’s demographics and replaced it with a statement that companies must maintain a workforce free of discrimination under the Minnesota Human Rights Act (MHRA).
The application checklist notes that the previously entitled “Affirmative Action Plan” is now known as the “Compliance Plan.” Further, it is no longer necessary that the workforce certificate application form be signed by the contractor’s president, chief executive officer, or board chair.
The application now includes new and comprehensive “Good Faith Efforts Agreements,” including an agreement to take prompt corrective action concerning violations of state human rights laws. Finally, the data privacy notice clarifies what information submitted with the application is and is not made available to the public.
Changes to the Affirmative Action Plan Template
In April 2025, MDHR changed the name of its AAP template from “Affirmative Action Programs for People of Color, Women and Individuals with Disabilities” to “Compliance Plan.” Differences between the old and new templates include:
The compliance plan no longer includes the definitions of the terms used in the plan.
The following sections were eliminated: “Internal and External Dissemination of Affirmative Action Policy and Plan,” “Action-Oriented Programs,” and “Goals & Timetables.”
The compliance plan includes a new section entitled “Anti-Discrimination Policy.”
The “Assignment of Responsibility for Affirmative Action Program” was reworked and retitled, “Equal Employment Opportunity Official and Role.”
The compliance plan no longer includes references to affirmative action or affirmative action goals. These have been replaced with equal employment opportunity (EEO) objectives.
The compliance plan no longer includes references to the utilization of businesses owned by women, people of color, and individuals with disabilities. Nor are there any references to full employment of women, people of color, and individuals with disabilities.
Contractors may wish to consider the following tips for preparing the compliance plan:
adopting MDHR’s most recent template and limiting revisions to MDHR’s suggested language;
ensuring the EEO official included in the EEO policy statement matches the EEO official listed in the workforce certificate application and in the compliance plan narrative;
ensuring the EEO policy statement is signed by the president, CEO, or board chair for the legal entity seeking the workforce certificate; and
ensuring the WUA and AUUA include all employees of the legal entity seeking the workforce certificate, including the top official of the legal entity (CEO or president), or at a minimum, all employees in Minnesota and at the company’s headquarters, including the company’s top official (CEO or president).
Changes to the MDHR Poster
The name of the new poster issued in 2025 is “Our Commitment to a Workplace Free from Discrimination.” It includes a new protected category for local human rights commission activity. It no longer includes any reference to affirmative action or AAPs.
Changes to the Annual Compliance Report
An annual compliance report (ACR) must be submitted to MDHR each year, even if the Minnesota contractor holds no current state government contracts.
Although the ACR packet includes a revision date of March 2025, the reports included therein appear to be unchanged, and interestingly still permit contractors to report on nonbinary employees.
What did change are the instructions for the ACR, both those included in the “Instructions & Requirements” tab of the ACR packet and on MDHR’s website. Contractors are now required to use 2018 (instead of 2010) census data to complete the “Availability and Underutilization Analysis” (AUUA) report. The instructions for the ACR used to read, “To make sure the Report is submitted on time, you can use a reporting period timeframe that is not more than 2 months prior to your certification date.” Under this old version of the instructions, contractors with a certification date of February 6 could pick any date between December 6 and February 6 to end their twelve-month ACR reporting period.
The revised instructions clarify MDHR’s previously unpublished rule change and now state, “To allow you enough time to compile the required data, your report can either start one or two months before the date your report is due. Each report must have the same start and end dates. For example, if your Workforce Certificate was approved 6.15.2024, your first ACR is due 6.15.2025.” Your reporting period can only be: 5.15.2024 to 5.14.2025, or 4.15.2024 to 4.14.2025.
MDHR’s unannounced rule change caused problems for many Minnesota contractors that had already submitted one or more ACRs using a reporting period that was not an exact date match to their workforce certificate. As a result, many contractors were required to revise and resubmit previously filed ACRs for the new date match reporting period.
Contractors may wish to consider the following tips for filing ACRs:
checking the MDHR website to ensure the most recent ACR form and instructions are being used;
confirming that the “Total Employees – Beginning of Reporting” period matches “The Total Current Employees” from the prior year’s ACR—unless this is the first ACR under a new workforce certificate; and
confirming the ACR “balances” before submitting it to MDHR; i.e., Total Employees Beginning of Reporting Period + Total Hires – Employees Transferred Out + Employees Transferred In – Employees Terminated must = Total Current Employees.
If the ACR does not “balance,” it will be rejected.
Contractors may also want to consider the following:
using “Total Current Employees” to prepare the AUUA;
using the whole person test to determine underutilization of women and minorities in the AUUA;
confirming the completion of Section F of the AUUA listing the recruitment area and census/standard occupational classification (SOC) codes used for each job group; and
when preparing the narrative report of the company’s steps to increase the utilization of females and/or minorities for any job groups where they are underutilized per the AUUA, making sure to include additional or different steps from the prior year ACR narrative for continuing areas of underutilization.
The letter template is optional.
Conclusion
Minnesota takes its affirmative action requirements for state government contractors seriously, and MDHR’s compliance officers are sticklers for their rules. It is rare for a workforce certificate application and/or ACR to be approved without a request for revisions.
Cleveland Will Prohibit Salary Inquiries and Require Salary Ranges in Job Postings
On April 28, 2025, the Cleveland City Council unanimously passed Ordinance No. 104-2025 (the “salary ordinance”), which will ban any employer that employs fifteen or more employees in the City of Cleveland, as well as any employment agency operating on the employer’s behalf, from asking about or considering a job applicant’s salary history. The salary ordinance also requires job postings to provide the salary range or scale of the position. The ordinance will take effect on October 27, 2025.
Effective October 27, 2025, employers with fifteen or more employees in Cleveland, Ohio, will be prohibited from asking about or considering a job applicant’s salary history under a new ordinance passed by the city council. The ordinance also applies to employment agencies operating on behalf of covered employers.
Quick Hits
The Cleveland City Council passed an ordinance that prohibits Cleveland businesses with fifteen or more employees within the city limits from inquiring about salaries and requires such businesses to provide salary information in job postings.
The ordinance allows employers to cure violations without receiving a civil monetary penalty but provides for civil penalties up to $5,000 for refusal to comply and multiple violations.
The ordinance is effective October 27, 2025.
Ordinance No. 104-2025, which the city council approved on April 28, 2025, also requires job postings to provide the salary range or scale of the position.
The city council noted in the ordinance that Cincinnati, Columbus, and Toledo have similar pay equity laws.
The ordinance makes it an unlawful discriminatory practice to: (1) inquire about a job applicant’s salary history; (2) screen applicants based on their current or prior salary history; (3) rely solely on an applicant’s salary history in deciding whether to offer the applicant employment; or (4) refuse to hire or otherwise retaliate against an applicant who refuses to disclose his or her salary history. The ordinance also requires Cleveland employers to include the salary range or scale of the position in the notification, advertisement, or other formal posting that offers the opportunity to apply. The ordinance does not, however, prohibit an employer from inquiring about a job applicant’s salary expectations.
The ordinance only applies to positions that will be performed within Cleveland’s geographic boundaries, and “whose application, in whole or in part, will be solicited, received, processed, or considered in the City of Cleveland, regardless of whether the person is interviewed.”
Cleveland’s Fair Employment Wage Board (FEWB) is tasked with enforcing the ordinance. Any person may allege violations of the ordinance by filing a written complaint with the FEWB within 180 days of the alleged violation. The ordinance provides for a resolution process and, if the FEWB finds by a preponderance of evidence that a violation has occurred, the employer may resolve and correct the deficiency within ninety days without receiving a penalty. If the deficiency is not cured within ninety days, the FEWB may issue a civil penalty, which starts at $1,000 per violation and increases with each violation up to a maximum of $5,000. The monetary penalties will adjust annually based on the U.S. Consumer Price Index for all Urban Consumers (CPI-U).
Employers covered under the ordinance may want to review their hiring practices and job postings to ensure compliance with the new ordinance when it takes effect.