The Skinny:

·      DEI stands for diversity, equity and inclusion – three laudable goals corporations in recent years have focused on, specifically on the heels of the Black Lives Matter movement.

·      Notwithstanding these goals, since their passage, long before either Trump administration, federal employment laws have prohibited making employment decisions based upon legally protected classes, including hiring, firing, promotion, etc., even when such decisions were made in an effort to lift up a historically disadvantaged group.

·      DEI was a target of the first Trump Administration, for example, its issuance of executive orders banning certain DEI trainings. It has once again become a focus point for this second Trump Administration in a more pointed manner. Trump has signed several executive orders related to abolishing “illegal” DEI programs. Examples of such executive orders include those affecting Big Law, colleges and universities, federal contractors and those receiving federal grants under the Department of Labor (“DOL”). The executive orders focus on an entity certifying it is not participating in “illegal” DEI and cancelling contracts and grants of those who are.

·      Certification of non-participation in “illegal” DEI is complicated for a couple reasons: it is not completely clear what qualifies as “illegal” DEI, and it may trigger a False Claim Act claim if the certifying party is found to be participating in any such “illegal” DEI.

·      The certification provision of Executive Order 14173 that was supposed to be effective April 21, 2025 was just enjoined nationwide as against the DOL with respect to any grantee or contractor. The rest of the order, described below remains intact for now.

·      Guidance recently released by the Trump Administration sheds some light on how the government may interpret “illegal” DEI and thus, how it may enforce its certification requirements.

·      Employers, even those who are not federal contractors or grantees, should take note of the guidance and review their DEI programs accordingly to avoid becoming a target of a discrimination investigation.

The Second Circuit recently held that an employee need not prove a requested accommodation is necessary for them to perform the essential functions of their job because the ADA does not require such proof. Instead, the ADA only requires the requested accommodation be reasonable. In so holding, the Court found that summary judgment was incorrectly granted to a school district that argued its employee could not prevail on her failure to accommodate claims because she had admitted that she could perform her job without the requested accommodation.

The Court explained the ADA only requires an employee to prove their employer is subject to the ADA, the employee is disabled pursuant to the ADA, and they were qualified to perform the essential functions of their job either with or without a reasonable accommodation and the employer failed to make such accommodation. The Court reasoned by requiring an employee to first prove the accommodation is necessary to be reasonable, would conflict with the plain wording of the statute requiring a “reasonable accommodation” and the intent of the law’s broad construction in light of its remedial nature.

This case is a reminder for employers not to focus on playing the part of an employee’s doctor determining what is or is not necessary or appropriate for a particular disability, but instead, focus on whether the employee is a qualified individual (i.e., has a disability under the ADA and can perform the essential functions of their job either with or without an accommodation) and whether providing the requested accommodation would be an undue hardship. This reminder is even more timely as mental health and neurodivergence is becoming more openly discussed and employees are more likely to seek accommodations related to both, each of which may not be as apparent as certain physical disabilities. Employers should ensure that their managers and human resources professionals are trained in language and actions to listen/look for to prompt an offer to begin the interactive process to avoid running afoul of disability laws, especially in jurisdictions that have greater protection that under federal law, like New  York City.

A recap of 2024 employment law and a look at what is coming in 2025.

Dear Reader:

It’s the end of another era. We’re back to December, and we know this time of year all too well – we’re long past the cruel summer, about a fortnight away from yet another year – ‘tis the damn season and it’s time to speak now so you can enter 2025 fearless(ly) because employment laws can be a nightmare dressed like a daydream leaving you haunted, if you’re not properly prepared. Read the manuscript below to avoid employment law becoming your albatross next year.

At the Federal Level

Grab Your Passport and My Hand - Is your I-9 Documentation in Order?

With a new administration coming in January, which promised mass deportation and a general crackdown on immigration, employers should ensure that they are in compliance with I-9 documentation. During Donald Trump’s last administration, I-9 audits were higher than during either the Obama or the Biden presidencies, and that should be expected this term.

Employers should audit their own I-9 compliance to ensure each of their employees has filled out their I-9 Form (accurately and completely) and provided proper supporting documents for verification, such as a passport, green card or E-Verify confirmations, and that the employer section of each I-9 has been properly completed. 

I-9 Forms are required to be completed by employees no later than their first day of work for pay and employers are required to fill out the second section no later than the third business day from when the employee started work for pay.