Ohio Employer Law Blog

WIRTW #795: the 'girls club' edition

2026-04-17T06:56:00.070-04:00

Trump's EEOC is expanding its crackdown on DEI by targeting women-only workplace networking and similar programs as potential illegal “reverse discrimination."

Here's what I told USA Today about this issue:

Women banding together to "build the relationships and visibility that have historically been handed to men is not the moral equivalent of the conduct that gave rise to the Civil Rights Act," said Jon Hyman, who chairs the employment and labor practice at the Wickens Herzer Panza law firm.

"When the agency charged with protecting workers from discrimination starts treating informal women's networking as its enforcement priority, it sends a message − not just a legal one, but a cultural one. And that message isn't 'we're enforcing the law equally.' It's 'we're using the law as a weapon against the very communities it was designed to protect.'"

You can read the rest of the article here, including thoughts from Chai Feldblum, David Glasgow, Brian Uzzi, and Reshma Saujani.

Thanks to Jessica Guynn for including me in her story.

Here's what I read this week that you should read, too.

Why Do Employers Demand Notice When They Fire At-Will? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Why AI readiness training fails — via HR Dive

When Creating an AI Strategy, Don't Overlook Employee Perception — via Harvard Business Review

When the Algorithm Is Your Boss: Remote Workplace Surveillance and Its Potential Violation of Labor Law — via The L•E•Jer

Lifestyle blogger said to have inspired Devil Wears Prada character uses unpaid student interns — via The Guardian

New Decision Reaffirms Roadmap for Employers on the Interactive Process — via Dan Schwartz's Connecticut Employment Law Blog

"Take it or leave it" is not a religious accommodation strategy — via Eric Meyer's Employer Handbook Blog

Trump's NLRB Doesn't Want to Investigate Worker Complaints — via The American Prospect

Sens. Warren and Blumenthal investigate NLRB decision to drop charges against SpaceX for retaliatory firings — via CNBC

4th Circuit Rules Agreements Can't Shorten Time to File Antidiscrimination Claims — via EntertainHR

Signature Required for Arbitration Agreements — via San Antonio Employment Law Blog

Is it wrong to hire a replacement before an employee is fired? — via Ask a Manager

A Year of Correction for Craft Beer, With Early Signals of Recovery — via Brewers Association

BA Economist: 2026 Could Be a 'Buying the Dip' Moment for New Brewers — via Brewbound

Forced religion at work is a very bad idea

2026-04-16T09:44:00.004-04:00

It started with an Easter email sent agency-wide from the top: "He has risen!" The message praised Christianity as "the foundation of our faith." Some employees were stunned. Others were offended. Many chose to stay quiet, worried about what might happen if they spoke up.

But it didn't stop there. Prayer services began appearing in government buildings. Invitations circulated. Policies allowed employees to "persuade" coworkers of their religious views. Leadership messaging leaned into a single faith tradition. And with that, the atmosphere changed. Employees described a growing sense of discomfort, pressure, and division—even when everything was labeled "voluntary."

That shift isn't surprising. When religion enters the workplace through leadership, it stops being personal and becomes institutional. This isn't about hostility to religion. Employees have every right to their beliefs, and Title VII protects those rights. Employers must accommodate sincerely held religious practices. People can pray, observe holidays, and express their faith within reasonable limits. None of that is controversial.

The problem arises when the employer becomes the messenger. Power changes everything. When a coworker shares their beliefs, you can disengage. When your boss—or your agency head—does it, the message carries weight. It signals expectation, even if none is explicitly stated. "Optional" starts to feel like a test. "Voluntary" starts to feel like a signal. And silence begins to feel safer than honesty. That's not inclusion; it's pressure.

That's why neutrality matters. Workplaces are not houses of worship; they are shared environments for people of different faiths and no faith at all. The only way that works is if the employer stays out of the religion business. Not anti-religion. Not pro-religion. Neutral. Because once leadership elevates one belief system, others inevitably feel like they don't quite belong.

There are legal risks, of course—religious harassment, hostile work environment, retaliation, and for public employers, constitutional concerns. But the more immediate damage is cultural. Trust erodes. Division grows. Employees who should feel safe speaking up instead stay silent.

Employers need to stay in their lane. Protect religious expression and accommodate it when required. But don't promote it, don't organize it, and don't wrap it in your institutional voice. Once that line is blurred, the consequences are no longer within your control.

Winning a lawsuit is not the proper measurement for the quality of your workplace

2026-04-15T10:26:00.002-04:00

"Lincoln may have freed the slaves, but I'm keeping you."

That's what a Black legal assistant claims a law firm partner told her in a closed-door meeting.

The employee sued for a hostile work environment.

The employer won.

That's where the court case ends—but it's not where the employer lesson should.

The Eleventh Circuit applied settled law. One offensive comment—even one this grotesque—is usually not "severe or pervasive" enough to violate Title VII. A single remark typically isn't enough.

So yes, the case was dismissed.

But what does it say about the workplace that produced it?

A partner—someone with authority—said that out loud in a closed-door meeting. That doesn't happen in a vacuum. It reflects a culture that failed to draw clear lines or enforce them.

The firm did what many employers do after the fact. It apologized, reassigned the employee, and created distance between her and the partner. Those steps likely helped limit liability.

They don't make this a success story.

Courts aren't evaluating your culture. They're applying a high legal threshold. Title VII is not a civility code, and plenty of unacceptable behavior falls short of liability.

Too many employers read decisions like this and take comfort in the wrong takeaway. "Case dismissed" becomes "we're fine," or "we don’t have risk."

You're not. And you do.

Because the real risk isn't this plaintiff, who alleged one comment and lost. It's the next one who alleges two. Or brings a witness. Or shows a pattern. Then you're not reading a dismissal—you're defending a case you might not win.

And even if you never see a courtroom, you're still paying for it. Comments like this don't just create legal exposure. They destroy trust in ways no apology can fully repair and damage your reputation in the community.

The law gave this employer a win. It didn't give it a pass.

If you're training managers to stay just shy of "severe or pervasive," you're aiming at the wrong target. The goal isn't to avoid liability. The goal is to make sure no one thinks a comment like that is ever acceptable to begin with.

Because "we won that lawsuit" is a terrible measure of your workplace—and an even worse one of your culture.

When workplace frustration becomes a five-alarm fire

2026-04-14T13:26:00.004-04:00

A warehouse goes up in flames. Fifteen hours to extinguish it. Hundreds of millions in damage. And a worker—three weeks into the job—now facing federal arson charges.

That's the story out of Ontario, California.

The most chilling detail? Authorities say the suspect filmed himself setting fires while saying, "All you had to do was pay us enough to live."

If true, that's more than evidence. It's a warning.

Most unhappy employees don't light matches. They quit. They disengage. They complain.

But some simmer. And when frustration festers—about pay, treatment, or something deeper—it can spill over in ways employers never see coming.

This case also appears to involve something more than a paycheck dispute. Prosecutors say the suspect expressed hostility toward corporations and framed his actions as workers versus shareholders.

That's not just dissatisfaction. That's ideology.

You can't litigate ideology out of someone. But you can manage risk around it. Start here:

1. Treat onboarding as a risk-control function.
Three weeks. That's all it took. New hires are your least connected and most unpredictable population. Set expectations early. Check in often. Don't assume silence equals satisfaction.

2. Create real channels for employee voice—and use them.
If employees feel unheard internally, they may express it externally. Exit interviews are too late. Pulse early. Train managers to escalate concerns before they calcify.

3. Pay attention to fairness, not just pay.
You don't need to win every compensation argument. But you do need to explain decisions. Perceived inequity drives behavior far more than absolute dollars.

4. Train supervisors to spot escalation, not just performance issues.
Withdrawal, agitation, fixation on grievances—these are management issues before they become security issues.

5. Assume everything is recordable and public.
This was allegedly filmed, narrated, and posted. Your workplace is one viral clip away from becoming evidence. Act—and train—accordingly.

6. Don't ignore cultural signals.
Language that frames the workplace as "us versus them" isn't just rhetoric. In the wrong hands, it becomes justification.

You can't prevent every bad act. Some people will make terrible decisions no matter what. But you can make your workplace less likely to produce one. Because it only takes one employee to turn a people problem into a business-ending event.

6th Circuit will answer when the workday begins for remote employees

2026-04-09T14:09:00.002-04:00

When does the workday begin for a remote employee?

Not when they walk through the office door. There is no office door.

So is it when they log in? When they boot up their computer? When they launch the software that actually lets them take calls?

For remote non-exempt employees, those questions aren’t academic. They’re the difference between paid time and unpaid time.

And the 6th Circuit just signaled it’s ready to answer them.

In a case involving remote call center workers, the court is taking up when the workday actually starts for non-exempt employees who must power up computers, log into multiple programs, and get fully “call ready” before they can do the job they’re paid to perform.

That matters under the FLSA. Because once the workday begins, the pay clock is running.

Historically, the “continuous workday” doctrine tied compensable time to the first principal activity. In a physical workplace, that might be donning required gear or logging into a workstation.

But what’s the first principal activity for a remote call center employee?

Is it turning on the computer? Logging into the VPN? Opening the call-handling software? Or only when they’re officially available to take calls?

Employees will argue that all the required boot-up and log-in steps are integral and indispensable to their jobs—and therefore compensable. Employers will argue that the workday starts only once the employee is fully operational and ready to take calls.

The 6th Circuit now gets to draw that line.

Here’s the problem: in a remote environment, that line is anything but clear. And ambiguity is fertile ground for wage-and-hour litigation—especially class and collective actions.

If your business uses remote employees, you should be paying attention.

Define when the workday begins. Be explicit about what pre-shift activities are required—and which are indispensable versus ancillary. Align your timekeeping systems with the reality of how employees actually start their day. And train managers not to create expectations that employees should be “ready to go” before their paid time begins.

Because if employees must perform a series of required steps before they can do their jobs, a court may very well decide that the workday starts with the first of those steps—not the last.

The 6th Circuit may soon give us clarity. Don’t count on it landing where you want.

PLEASE, do not litigate your cases on social media

2026-04-08T09:07:00.002-04:00

"I am going to fight this nonsense to the end of the earth in the hope that it inspires other CEOs to do the same so we shut down this despicable behavior that is a large tax on society, employment, and the economy and contributes to workplace discrimination rather than reducing it."

Those were the concluding words in a scribe Bill Ackman, a hedge fund CEO, posted on X in defense of a discrimination lawsuit facing his company.

His post, while deeply personal, is a masterclass in how NOT to handle employment litigation.

Let me be clear. CEOs absolutely have the right to defend their companies against what they believe are meritless claims. Some lawsuits are opportunistic. Some are not. That's what courts are for.

But the moment a CEO decides to litigate that dispute in the court of public opinion, the risk calculus changes—and not in the company's favor.

Start with control. Once you take your story public, you no longer own it. The narrative splinters. Media outlets cherry-pick details. Social media amplifies outrage. And plaintiff's counsel? They sit back and watch you do their work for them.

Because that's the second problem—you're creating evidence. Every assertion, every characterization, every "fact" you post is now part of the record. Opposing counsel will dissect it line by line, looking for inconsistencies, exaggerations, or admissions. What feels like a defense becomes a deposition exhibit and evidence of pretext.

Third, you're inflating the stakes. Most employment cases are business decisions dressed up as legal disputes. They resolve quietly because that's often the rational outcome. But once you go public, you've turned a dispute into a spectacle. Now settlement isn't just about dollars—it's about saving face.

Fourth, you're undercutting your own lawyers. Effective legal strategy requires discipline, precision, and timing. A CEO posting a blow-by-blow account on X is the opposite of all three. You're not helping your case; you're destabilizing it.

And then there's your workforce. Employees aren't reading your post as a principled stand. They're asking a simpler question: if something goes wrong for me, will my employer take it to the internet? That's not a culture-builder.

None of this means CEOs should roll over. They shouldn't. Defend the case. Take it to trial if necessary. Push back against meritless claims.

But do it in the right forum.

Because the court of public opinion has no rules of evidence, no burden of proof, and no off switch. And once you step into it, you may win the argument, and lose everything else.

WIRTW #794: the 'philanthropy' edition

2026-04-03T06:55:00.045-04:00

On this week's episode of the Norah and Dad Show, we talked about what Delta Zeta has come to mean to her, and I couldn’t help but smile listening to her. Greek life was never my thing, but I'm genuinely glad it's hers. She’s found her people—and not just a social circle, but a group that aligns with who she is. That includes their focus on speech and hearing advocacy, which fits her empathy and curiosity (and maybe even career goals) to a tee. It's one thing to join an organization; it's another to find one that sharpens your perspective and pushes you to care more deeply about issues that matter. This one does both for her, and it shows.

Norah and I covered a range of other topics, including food poisoning, a preview of her upcoming trip to New York City, travel horror stories (including Times Square on New Year's Eve and a very questionable museum couch), and speed traps. You can listen via Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, your browser, and everywhere else you get your podcasts.

(If you are inclined to make a donation to DZ's philanthropy, you can do so here.)

Here's what I read this week that you should read, too.

Born Here Means Citizen. Period. — via Authoritarian Alarm

How Trump's EEOC is attacking DEI and emphasizing white people — via NPR

New Executive Order Bans "Racially Discriminatory DEI Activities" by Federal Contractors and Their Subcontractors — via Eric Meyer's Employer Handbook Blog

Coming Clean: Planned Parenthood Pays Half-Million $$ to Resolve DEI-Related Investigation — via Joe's HR and Benefits Blog

Does DEI still have a role to play in employer branding? — via HR Dive

Getting Ready for Agentic AI and Create an Onboarding Plan for AI Agents — via Harvard Business Review

Oracle Laid Off Thousands by Email—and That May Have Been the Right Call — via Improve Your HR by the Evil HR Lady, Suzanne Lucas

Can You Take a Joke? Fifteen Years Later, the Answer Is Still "Maybe" — via Dan Schwartz's Connecticut Employment Law Blog

Should I work from home if I have a cold? — via Ask a Manager

Are We There Yet? Reviewing Impasse in Union Negotiations — via EntertainHR

BrewDog's new owner: We must overcome 'stigma' of James Watt — via The Telegraph

Ohio Brewers Look Back to the Future — via Ohio Craft Brewers Association

Music Licensing Is Getting More Complicated. Here's Where Things Stand. — via Brewers Association

Mental Health Is Now a Retention Problem. For Some Employers, It's Also a Legal One.

2026-04-01T06:53:00.001-04:00

One in four employees have considered quitting because of their mental health.

Let that sink in.

Not compensation. Not commute. Not a bad boss. Mental health.

The latest NAMI-Ipsos Workplace Mental Health poll paints a pretty stark picture: employees are stressed, overwhelmed, and—critically—don't feel safe talking about it at work. Nearly half fear judgment. Even fewer trust HR or leadership with these conversations.

That's not just a culture problem. It's a retention problem. And, increasingly, a legal one.

What can employers actually do about it?

Start with the basics. The same NAMI-Ipsos survey found that more than 80% of employees want training on stress, burnout, and crisis response. Give it to them—not a one-off webinar no one remembers, but ongoing, practical training for both employees and managers.

Train managers to recognize warning signs—withdrawal, missed deadlines, sudden performance drops—and to respond appropriately. Not as therapists, but as informed leaders who know when to listen and when to escalate.

Make your resources visible and usable. An EAP buried in a handbook isn't a benefit. Regularly communicate what's available, how to access it, and normalize using it. If leadership never talks about these tools, employees assume they shouldn't use them.

Flexibility matters more than most employers realize. A significant share of the workforce is in what's sometimes called the "sandwich generation"—simultaneously caregiving for children and aging parents. For these employees, rigid schedules and unsustainable workloads aren't just inconvenient; they're breaking points. Thoughtful scheduling, remote options, and realistic workload expectations go a long way toward reducing burnout before it becomes a resignation.

And then there's culture—the piece that makes or breaks everything else. If employees believe speaking up will make them look weak or cost them opportunities, they'll stay silent until they quit. Leaders set the tone. When mental health is treated as legitimate and discussable, stigma starts to erode. When it isn't, all the EAP communications in the world won't matter.

Where does the ADA come into play?

Not every stressed employee has a disability. But some do.

When an employee's mental health condition rises to the level of a disability—and the employer knows or should know about it—the ADA's reasonable accommodation obligations are triggered. That doesn't require magic words. "I'm struggling with anxiety and need help managing my workload" can be enough to start the interactive process.

From there, the obligation is familiar: engage in good-faith dialogue and consider reasonable accommodations. That might include modified schedules, remote work, additional breaks, leave, or adjusted job duties.

Here's where many employers go wrong: they treat what looks like a performance problem as only a performance problem. An employee starts missing deadlines, disengages, gets a PIP—and no one stops to ask whether a medical condition might be in play. That's not just a missed opportunity. Depending on the circumstances, it can be a legal liability.

Ignoring the issue, or treating it purely as a conduct matter without exploring whether something deeper is going on, isn't a neutral choice. Once an employer knows or should know that a mental health condition may be affecting an employee's work, the obligation to engage has begun.

The bottom line

The mental health crisis in the workplace isn't going away. Employers who take it seriously—with real training, visible resources, flexible structures, and cultures where people feel safe enough to speak up—will have a meaningful advantage in retaining the people they've worked hard to hire.

Because if you don't create a workplace where people can cope, they'll find one where they can.

Employers can no longer count on private arbitration when sexual harassment is on the docket

2026-03-31T06:57:00.001-04:00

Employers love arbitration agreements. They keep disputes private and out of court.

Unless, that is, sexual harassment is in the case.

An Ohio appellate court just made that crystal clear in Hansbrough v. Marshall Dennehey.

The employer did what employers do. It pointed to a signed arbitration agreement and moved to compel arbitration of the employee's claims.

That used to be a strong move. Then Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. That changed everything.

The question in Hansbrough wasn't whether the plaintiff would ultimately prove harassment. It was much earlier in the case: did the complaint plausibly allege sexual harassment occurring after March 3, 2022 (the EFAA's effective date)? The court said yes.

And under Ohio's notice-pleading standard, that was enough. Once the plaintiff cleared that low bar, the EFAA applied. And once the EFAA applied, the arbitration agreement could not be enforced—not just for the harassment claim, but for the entire case.

Read that again. Not just the harassment count. The entire case.

That's the real takeaway. This wasn't a merits decision. It was a procedural one. But procedural doesn't mean unimportant. It means the fight over where the case gets decided—court versus arbitration—may now turn on how a complaint is drafted.

The court didn't need to reach a harder question—whether post-EFAA retaliation tied to pre-EFAA harassment would independently trigger the statute. The plaintiff's allegations of post-EFAA harassment made that unnecessary.

But don't miss what this means in practice. Sexual harassment claims rarely travel alone. They come bundled with retaliation, discrimination, and other statutory claims. And under the EFAA, one viable harassment allegation may keep that entire bundle in court.

Arbitration agreements no longer operate as universal shields.

If your risk analysis assumes you can push most employment disputes behind closed doors, you need to revisit that assumption. In fact, one well-pleaded harassment claim may be all it takes to blow up arbitration entirely.

The Supreme Court lowered the bar. Employers should take notice.

2026-03-30T13:26:00.001-04:00

Last year, in Muldrow v. City of St. Louis, SCOTUS rewrote what counts as an "adverse employment action" under Title VII. The old rule required something "materially" adverse—real harm. That's gone. Now, if an employee is left even a little worse off in the terms or conditions of employment, that's enough.

That's a big deal. It opens the door to challenges over everyday workplace decisions that courts used to dismiss as trivial.

But here's the nuance: the bar is lower—not nonexistent.

Enter Walsh v. HNTB Corp.

Walsh, a long-time IT employee, was placed on a performance improvement plan. She completed it. No demotion. No pay cut. She later resigned and claimed age discrimination, arguing that the PIP itself was an adverse action.

Under pre-Muldrow law, that claim was dead on arrival. Post-Muldrow? It at least gets a serious look.

The First Circuit acknowledged the new standard: any change that leaves an employee worse off in their job conditions can qualify. And importantly, it made clear that some PIPs will meet that test.

But Walsh still lost. Her PIP didn't actually change anything that mattered. No new duties. No reduced opportunities. No impact on pay, title, or advancement. The court called it what it was—"documented counseling."

That's the lesson. A PIP is no longer automatically safe. But it's not automatically actionable either. It depends on what it does.

A PIP can now be an adverse action if it:

📝 Adds worse or more burdensome responsibilities
📝 Limits promotion or transfer opportunities
📝 Impacts compensation or advancement
📝 Meaningfully alters how the job is performed

Walsh's PIP did none of these. So, the employer won.

But don't get too comfortable. Here's what employers should be doing right now:

First, draft PIPs like they'll be Exhibit A. Because they will be. Tie them to objective performance issues and avoid vague, subjective critiques.

Second, be careful about layering on consequences. The more a PIP changes how someone works—or what opportunities they have—the more it starts to look like an adverse action.

Third, stay consistent. Disparate treatment claims just got easier to plead and harder to dismiss early.

Fourth, train your managers. "It's just a PIP" is no longer a safe assumption.

Muldrow didn't take the bar away. But it dropped it. And Walsh shows how low employers now have to go to get under it.