--- title: "Discrimination" description: "" url: "https://wimlaw.com/tags/discrimination" date: "2026-06-01T13:50:19+00:00" language: "en-US" --- ## Discrimination [ ![gavel](https://wimlaw.com/media/yootheme/cache/8a/sasun-bughdaryan-FaTLrG5-ViE-unsplash-8a5d0dce.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1560&catid=53&Itemid=560)##### [$27 Million Verdict against Employer on Disability Discrimination over Refusal to Return Employee to Work](https://wimlaw.com/index.php?option=com_content&view=article&id=1560&catid=53&Itemid=560) February 06, 2026 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1560&catid=53&Itemid=560) [ ![gavel, courtroom](https://wimlaw.com/media/yootheme/cache/f2/sasun-bughdaryan-FaTLrG5-ViE-unsplash-f285c65c.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1563&catid=53&Itemid=560)##### [Can Hostile Environment Plaintiffs Bolster Their Case by Evidence of Hostile Environment Against Other Minorities?](https://wimlaw.com/index.php?option=com_content&view=article&id=1563&catid=53&Itemid=560) March 09, 2026 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1563&catid=53&Itemid=560) [ ![network visualization](https://wimlaw.com/media/yootheme/cache/ff/jj-ying-8bghKxNU1j0-unsplash-ffeafde9.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1519&catid=53&Itemid=560)##### [Company Intranet Policies Raise Legal Issues](https://wimlaw.com/index.php?option=com_content&view=article&id=1519&catid=53&Itemid=560) October 31, 2025 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1519&catid=53&Itemid=560) [ ![staff](https://wimlaw.com/media/yootheme/cache/16/duonguyen-RlakZ84ex2g-unsplash-16826b2e.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1576&catid=53&Itemid=560)##### [Developments in Use of Indemnity Agreements with Staffing Agencies](https://wimlaw.com/index.php?option=com_content&view=article&id=1576&catid=53&Itemid=560) April 16, 2026 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1576&catid=53&Itemid=560) [ ![ai? whiteboard](https://wimlaw.com/media/yootheme/cache/cd/nahrizul-kadri-OAsF0QMRWlA-unsplash-cdb7f74e.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1521&catid=53&Itemid=560)##### [Does AI Help in Selecting New Hires?](https://wimlaw.com/index.php?option=com_content&view=article&id=1521&catid=53&Itemid=560) October 31, 2025 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1521&catid=53&Itemid=560) [ ![scales of justice](https://wimlaw.com/media/yootheme/cache/f4/sasun-bughdaryan-zbQ5UaREHx4-unsplash-f42e433c.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1540&catid=53&Itemid=560)##### [Effect of Administration’s Abandonment of Disparate Impact in the Area of Discrimination Continues to Be Felt](https://wimlaw.com/index.php?option=com_content&view=article&id=1540&catid=53&Itemid=560) January 30, 2026 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1540&catid=53&Itemid=560) [ ![stack of reports](https://wimlaw.com/media/yootheme/cache/7f/bernd-klutsch-nE2HV5AUXFo-unsplash-7fe64d33.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1550&catid=53&Itemid=560)##### [Employers Sued for Not Meeting EEO-1 Reporting Obligations](https://wimlaw.com/index.php?option=com_content&view=article&id=1550&catid=53&Itemid=560) November 30, 2025 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1550&catid=53&Itemid=560) [ ![group of people and listening](https://wimlaw.com/media/yootheme/cache/7f/sincerely-media-dGxOgeXAXm8-unsplash-7f5b60a5.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1532&catid=53&Itemid=560)##### [Federal Circuit Court Upholds Claim against DEI Training](https://wimlaw.com/index.php?option=com_content&view=article&id=1532&catid=53&Itemid=560) December 18, 2025 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1532&catid=53&Itemid=560) [ ![racial equality, printed, typewriter](https://wimlaw.com/media/yootheme/cache/c9/markus-winkler-4oc8J17cit0-unsplash-c94e6034.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1485&catid=53&Itemid=560)##### [Federal Government to Drop Disparate Impact Basis for Discrimination Claims](https://wimlaw.com/index.php?option=com_content&view=article&id=1485&catid=53&Itemid=560) June 26, 2025 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1485&catid=53&Itemid=560) [ ![hello](https://wimlaw.com/media/yootheme/cache/35/drew-beamer-3SIXZisims4-unsplash-353a0395.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1555&catid=53&Itemid=560)##### [Harassment Claimed from Co-worker Complaints That Employee Didn’t Speak Much English](https://wimlaw.com/index.php?option=com_content&view=article&id=1555&catid=53&Itemid=560) February 04, 2026 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read 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Binding?](https://wimlaw.com/index.php?option=com_content&view=article&id=1566&catid=53&Itemid=560) March 09, 2026 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1566&catid=53&Itemid=560) [ ![electronic devices](https://wimlaw.com/media/yootheme/cache/e5/hal-gatewood-WcYeiHMexR0-unsplash-e5659e4a.jpg) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1529&catid=53&Itemid=560)##### [Issues of Employer Access to Employees’ Personal Devices Such as Cell Phones, Etc](https://wimlaw.com/index.php?option=com_content&view=article&id=1529&catid=53&Itemid=560) December 18, 2025 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1529&catid=53&Itemid=560) [ ![jury chairs](https://wimlaw.com/media/yootheme/cache/10/billy-uJPmmC5z1Pg-unsplash-10229d9d.jpg) 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Issues](https://wimlaw.com/index.php?option=com_content&view=article&id=248&catid=53&Itemid=560) October 13, 2015 Category: Employment Law Newsletter: A Monthly Report On Labor Law Issues [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=248&catid=53&Itemid=560) [ ![New Horizons in Employment Discrimination promo graphic](https://wimlaw.com/media/yootheme/cache/7b/WimLaw-Promo-Slide-april-2023-tiny-2-7b6c51b8.png) ](https://wimlaw.com/index.php?option=com_content&view=article&id=1299&catid=221&Itemid=1102)##### [New Horizons in Employment Discrimination — Changing Definitions and Expanding Liability](https://wimlaw.com/index.php?option=com_content&view=article&id=1299&catid=221&Itemid=1102) March 06, 2023 Category: Webinars: Employment Law "Hot Topics" [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1299&catid=221&Itemid=1102) [ ![mechanical calculator 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Another](https://wimlaw.com/index.php?option=com_content&view=article&id=1581&catid=221&Itemid=1102) April 21, 2026 Category: Webinars: Employment Law "Hot Topics" [Read more](https://wimlaw.com/index.php?option=com_content&view=article&id=1581&catid=221&Itemid=1102) ## Schema ```json { "@context": "https://schema.org", "@type": "FAQPage", "mainEntity": [ { "@type": "Question", "name": "Is the EEOC still active under the current administration?", "acceptedAnswer": { "@type": "Answer", "text": "Yes. The EEOC is very much alive, and charges are being filed. The agency has shown an increase in aggressive investigations and recently registered its largest public settlement in almost 20 years. (04:41)" } }, { "@type": "Question", "name": "Do my company's anti-discrimination policies need to be updated?", "acceptedAnswer": { "@type": "Answer", "text": " Yes. Policies and employee handbooks should be treated as living documents and audited annually to ensure compliance with recent legal changes. (02:45)" } }, { "@type": "Question", "name": "Can we choose a job candidate based on their qualifications without risking a discrimination lawsuit?", "acceptedAnswer": { "@type": "Answer", "text": "Yes. You can and should choose the most qualified candidate. The key is to base your decision on objective, job-related criteria like experience, skills, and work history. The law is violated when a company uses these criteria as a pretext for a decision actually based on a protected characteristic like age, race, or gender. For example, it's legal to choose a candidate with more experience. It's illegal to reject a candidate with more experience because you assume they're "too old" for the team. (10:42)" } }, { "@type": "Question", "name": "What is the Pregnant Workers Fairness Act (PWFA), and how does it affect our company handbook?", "acceptedAnswer": { "@type": "Answer", "text": "The PWFA requires employers to provide reasonable accommodations for pregnant employees. It's critical to update your handbook to reflect that in some cases, you cannot deny an accommodation for an obvious pregnancy even without a doctor's note. The standard for accommodation has been lowered. (16:09)" } }, { "@type": "Question", "name": "Can we fire an employee who is out on workers' compensation?", "acceptedAnswer": { "@type": "Answer", "text": "Terminating an employee on workers' compensation is legally risky. It is generally more prudent to wait until they return or have reached maximum medical improvement, unless you can prove the position would have been eliminated regardless of their injury. (42:14)" } }, { "@type": "Question", "name": "Is it okay to put a lactation space in a bathroom?", "acceptedAnswer": { "@type": "Answer", "text": "No. Under the Pump Act, the lactation space must be a private area that is not a bathroom. (18:44)" } }, { "@type": "Question", "name": "Does our company need to put up labor law posters?", "acceptedAnswer": { "@type": "Answer", "text": "Yes. Employers should ensure they have up-to-date and legally required posters from various agencies (e.g., EEOC, FLSA, NLRB) displayed in a conspicuous place. (40:24)" } }, { "@type": "Question", "name": "Should a manager make a complaint for an employee who is being harassed if the employee is not willing to?", "acceptedAnswer": { "@type": "Answer", "text": "Yes. Recent EEOC guidance suggests that an individual aware of a colleague in the same protected class being harassed may have standing to bring their own harassment claim, even if they were not the direct target. Employers should take all reports of harassment seriously. (21:58)" } }, { "@type": "Question", "name": "What is the best way to handle an employee complaint?", "acceptedAnswer": { "@type": "Answer", "text": "It is important to have clear, well-documented, and consistently followed procedures for all complaints. Training for managers and an "open door" policy help ensure employees feel heard and that their complaints are taken seriously. (24:06)" } }, { "@type": "Question", "name": "Why are employers becoming more reluctant to take public political stands? ", "acceptedAnswer": { "@type": "Answer", "text": "Employers have become increasingly timid about advocating for political positions because modern public opinion is often split nearly 50/50. Taking a stand may appeal to one half of a workforce or consumer base while completely alienating the other half, potentially leading to massive losses in market value or dual boycotts from both sides of the political spectrum (02:38)." } }, { "@type": "Question", "name": "Can an employer have a dress code that bans political buttons or apparel? ", "acceptedAnswer": { "@type": "Answer", "text": "Yes, most current legal rulings suggest that an employer can implement a dress code that limits political paraphernalia in the workplace. This is often done to avoid the contention that arises when one group's insignia (such as Black Lives Matter) leads to demands for opposing insignia to be allowed as well (05:11)." } }, { "@type": "Question", "name": "Can I fire an employee for complaining about their supervisor on social media? ", "acceptedAnswer": { "@type": "Answer", "text": "There is no standard "yes" or "no" answer. If an employee's post is a "concerted complaint"—meaning it involves other employees and relates to working conditions—it may be protected under the National Labor Relations Act (NLRA). In such cases, the employer generally cannot discipline or terminate the employee for that speech (08:25)." } }, { "@type": "Question", "name": "What is "concerted activity" under the National Labor Relations Act?", "acceptedAnswer": { "@type": "Answer", "text": "Concerted activity refers to group actions or complaints by employees intended for "mutual aid or protection" regarding their working conditions. Section 7 of the NLRA protects these rights, meaning employers cannot punish employees for exercising this form of free speech, even if a union is not involved (09:39)." } }, { "@type": "Question", "name": "Can an employee be fired if their protest includes offensive or discriminatory language? ", "acceptedAnswer": { "@type": "Answer", "text": "Yes. While a protest about working conditions may be protected, that protection can be lost if the employee uses speech that is egregiously offensive or violates the company's equal opportunity principles. A well-documented termination must clarify that the discipline is specifically for the unprotected, offensive portion of the conduct (15:30)." } }, { "@type": "Question", "name": "Does the First Amendment protect free speech in a private workplace? ", "acceptedAnswer": { "@type": "Answer", "text": "No. The First Amendment limits the government's ability to restrict speech and provides special protections for public (government) employees. It does not apply to private employers, though other laws like the NLRA or state-specific statutes might offer different types of protection (20:00)." } }, { "@type": "Question", "name": "What is the best way to write a social media policy that is legally defensible? ", "acceptedAnswer": { "@type": "Answer", "text": "A social media policy should be narrowly tailored to reflect legitimate and substantial business interests. To avoid "chilling" protected speech, it is recommended to include a disclaimer next to sensitive rules stating that the policy will not be applied to prohibit activity protected by Section 7 of the NLRA (21:08)." } }, { "@type": "Question", "name": "Can I stop employees from posting flyers or messages around the office? ", "acceptedAnswer": { "@type": "Answer", "text": "Employers have the right to control postings on their facilities. It is legally safer to have a policy that prohibits all postings on company property or confines them to a single, designated bulletin board. Allowing unmonitored postings everywhere can make it difficult to legally restrict controversial or union-related materials later (25:48)." } }, { "@type": "Question", "name": "Am I required to take action if an employee posts something offensive off-duty? ", "acceptedAnswer": { "@type": "Answer", "text": "In some cases, yes. If an off-duty social media post is discriminatory or creates a hostile work environment that carries over into the workplace, the employer may have a legal obligation to intervene to prevent harassment or reputational damage (28:14)." } }, { "@type": "Question", "name": "What should I do first if I see a controversial post by an employee? ", "acceptedAnswer": { "@type": "Answer", "text": "First, verify the source of the complaint and obtain a permanent record, such as a screenshot, of the post itself, as online content can be easily deleted or edited. Before taking disciplinary action, consider if the issue can be resolved through counseling or "browbeating," which carries less legal risk than termination (34:40)." } }, { "@type": "Question", "name": "What is AI brain fry and which professions are most affected by it?", "acceptedAnswer": { "@type": "Answer", "text": "AI brain fry describes the mental and physical overwhelm caused by the rapid implementation of complex artificial intelligence systems. According to the Harvard Business Review, human resources and marketing are the two professional fields most significantly impacted by this condition as they navigate integrating these tools into their daily workflows." } }, { "@type": "Question", "name": "How does the EEOC's Four-Fifths Rule apply to AI hiring tools?", "acceptedAnswer": { "@type": "Answer", "text": "The Four-Fifths Rule is a statistical benchmark used to determine if a neutral hiring criteria, including AI screening, has a discriminatory effect. If a protected group's selection rate is less than 80% of the majority group's rate, it creates a "discriminatory effect," shifting the legal burden to the employer to prove the tool is a job-related business necessity." } }, { "@type": "Question", "name": "Can an employer be held legally responsible for discriminatory AI provided by a vendor?", "acceptedAnswer": { "@type": "Answer", "text": "Yes, employers remain legally responsible for any discriminatory outcomes resulting from a vendor’s AI product. Utilizing a reputable third-party system is not a valid legal defense; both the vendor and the employer can be sued for adverse impacts. Organizations should review a vendor's validation studies and seek indemnity provisions in their service contracts." } }, { "@type": "Question", "name": "Is seeking legal advice from AI protected by attorney-client privilege?", "acceptedAnswer": { "@type": "Answer", "text": "No, communications with AI to seek legal advice or develop strategy are generally not protected by attorney-client privilege because the information is not being exchanged with a lawyer. A recent New York federal court ruling determined that such inquiries are discoverable and admissible as evidence in court, allowing plaintiffs to access an employer's specific AI prompts and advice." } }, { "@type": "Question", "name": "What are the risks of using open AI platforms like ChatGPT for company data?", "acceptedAnswer": { "@type": "Answer", "text": "Disclosing trade secrets, confidential company information, or sensitive legal questions to open AI platforms is legally comparable to publishing them in a newspaper. Such disclosures can lead to the loss of confidentiality and intellectual property rights. Furthermore, many AI vendors reserve the right to share stored data to respond to legal processes or improve their systems." } }, { "@type": "Question", "name": "What steps should employers take to audit AI systems for bias?", "acceptedAnswer": { "@type": "Answer", "text": "Employers should perform regular audits by reviewing data, such as rejected resumes, to identify trends where specific protected categories are being adversely impacted. If internal technical capacity is lacking, third-party vendors can be hired to conduct these bias audits. Constant human oversight is essential to catch inadvertent legal violations that precise AI monitoring might trigger." } }, { "@type": "Question", "name": "Are AI-driven productivity monitoring tools legal under the FLSA?", "acceptedAnswer": { "@type": "Answer", "text": "While monitoring is common, AI systems that track productivity down to the second can inadvertently violate the Fair Labor Standards Act (FLSA) by docking pay for compensable time, such as short bathroom breaks or coffee runs. Courts have allowed lawsuits to proceed against companies where AI-adjusted timekeeping records failed to pay employees for legally required compensable portions of the workday." } }, { "@type": "Question", "name": "What is the difference between disparate treatment and disparate impact under Title VII?", "acceptedAnswer": { "@type": "Answer", "text": "Disparate treatment refers to intentional discrimination where an employer treats a protected group less favorably. Disparate impact, or adverse impact, involves neutral employment practices that are not intentionally discriminatory but result in a significantly lower selection rate for protected groups. Both theories are recognized under Title VII of the Civil Rights Act." } }, { "@type": "Question", "name": "What was the significance of the Griggs v. Duke Power Supreme Court ruling?", "acceptedAnswer": { "@type": "Answer", "text": "Griggs v. Duke Power established that employment practices—like high school diploma requirements—are unlawful if they have a discriminatory effect on protected groups, regardless of intent. Unless an employer proves the criteria is a job-related business necessity, unintentional discrimination via neutral hiring requirements is prohibited under federal law." } }, { "@type": "Question", "name": "How is adverse impact calculated using the four-fifths rule?", "acceptedAnswer": { "@type": "Answer", "text": "The four-fifths rule is a simplified metric where adverse impact is identified if the selection rate for a protected group is less than 80% (four-fifths) of the rate for the highest-selected group. While standard deviation analysis provides more sophisticated statistical evidence, the four-fifths rule remains a common thumb-rule for employers." } }, { "@type": "Question", "name": "What qualifies as a "test" or selection criteria under federal employment law?", "acceptedAnswer": { "@type": "Answer", "text": "Under the law, a "test" encompasses any selection criteria used to make employment decisions, not just written exams. This includes educational requirements, prior experience levels, criminal record checks, and physical or electronic screening systems. Any of these criteria can be challenged if they produce a substantial adverse impact." } }, { "@type": "Question", "name": "How can an employer legally defend a hiring practice that has an adverse impact?", "acceptedAnswer": { "@type": "Answer", "text": "Employers must demonstrate that the criteria is a "job-related business necessity" through validity studies. This involves proving the test accurately predicts successful job performance using criterion-related, content, or construct validity. Common examples include showing that an experience requirement or a specific skill test directly measures essential work functions." } }, { "@type": "Question", "name": "Is the EEOC still enforcing adverse impact or disparate impact cases?", "acceptedAnswer": { "@type": "Answer", "text": "The EEOC and Department of Justice recently shifted enforcement priorities to focus on individual rights and intentional discrimination rather than statistical "numbers games." While the federal government may no longer investigate or sue based on adverse impact theories alone, private plaintiffs still aggressively pursue these cases in court." } }, { "@type": "Question", "name": "Should employers maintain applicant flow logs with race and sex data?", "acceptedAnswer": { "@type": "Answer", "text": "While the EEO-1 report requires data on current employees, there is no federal obligation to maintain racial or sexual identification logs for unsuccessful applicants. Not keeping this data makes it significantly more difficult for private plaintiffs to establish the statistical evidence required to bring an adverse impact lawsuit." } } ] } ``` ```json { "@context": "https://schema.org", "@type": "BreadcrumbList", "itemListElement": [ { "@type": "ListItem", "position": 1, "name": "Home", "item": "https://wimlaw.com" }, { "@type": "ListItem", "position": 2, "name": "Tags", "item": "https://wimlaw.com/tags" }, { "@type": "ListItem", "position": 3, "name": "Discrimination", "item": "https://wimlaw.com/tags/discrimination" } ] } ```