Ohio Employer Law Blog

The 4th Circuit just made wage-and-hour class actions a lot harder to certify

2026-06-25T07:16:00.000-04:00

Not every wage-and-hour lawsuit belongs as a class action.

That's the lesson from the 4th Circuit's recent decision in Overby v. Anheuser-Busch, where the court vacated certification of a Virginia wage-and-hour class alleging employees weren't paid for mandatory pre- and post-shift work.

The case involved hourly employees at Anheuser-Busch's Williamsburg brewery. Employees claimed they performed a variety of unpaid activities outside their scheduled shifts, including donning and doffing personal protective equipment, complying with COVID-era screening protocols, attending shift-handoff meetings, and putting away tools. The district court certified a class of essentially all hourly brewery employees, concluding that the central question was whether Anheuser-Busch had a policy of paying only scheduled shift time despite requiring additional work.

The 4th Circuit wasn't buying it.

The court's opinion builds on its 2024 decision in Stafford v. Bojangles' Restaurants, which warned courts against defining common questions at too high a level of abstraction. According to Judge Wilkinson, broad formulations like "Did the company fail to pay employees for required work?" sound common, but they often conceal the very differences that make class treatment inappropriate.

And there were lots of differences here.

Some employees participated in shift-handoff meetings. Others didn't. Some employees wore certain PPE at home before arriving at work. Others changed at the brewery. Some employees worked during the COVID-screening period. Others were hired after those protocols ended. Some workers were governed by one version of Virginia's wage laws, while others were subject to a materially different statutory framework after legislative amendments took effect in 2022.

Those distinctions mattered because liability couldn't be determined with a single answer applicable to everyone. Instead, the court saw a case that would devolve into a series of employee-by-employee inquiries about what work was performed, where it was performed, when it was performed, and whether it was legally compensable.

That's poison for Rule 23's commonality and predominance requirements.

For employers, this decision reinforces an increasingly important trend in class-action jurisprudence. Courts are becoming less willing to certify sweeping workplace classes based solely on generalized allegations of companywide policies. Instead, they are demanding evidence that liability can actually be determined through common proof.

That's especially significant in off-the-clock cases. While plaintiffs often frame these lawsuits around a single alleged policy, the underlying facts frequently vary from employee to employee, department to department, location to location, and even shift to shift.

The 4th Circuit's message is straightforward: courts must look beneath the label of a "common policy" and examine whether the employees' actual experiences are sufficiently similar to justify collective treatment. If answering the liability question requires hundreds of mini-trials, class certification is likely off the table.

Employers should take note. A well-developed factual record showing differences in job duties, work practices, locations, schedules, and compensation procedures can be a powerful weapon against class certification. Overby demonstrates that even where employees allege a common wage-and-hour violation, meaningful variations among workers may be enough to keep the case from proceeding as a class action.

Class actions remain an important tool for addressing widespread workplace violations. But as the 4th Circuit reminded everyone in Overby, a common-policy allegation is not enough to certify a class if the underlying facts aren't common too.

Why your noncompete agreement could become "Exhibit A" in a discrimination lawsuit.

2026-06-24T06:40:00.000-04:00

For years, employers have treated noncompete agreements as just another item in the onboarding paperwork. Hand over the offer letter, the handbook acknowledgment, the tax forms, and somewhere in the stack sits a restrictive covenant that employees sign without much thought.

The recently settled lawsuit against Boston Beer Company serves as a reminder that noncompetes rarely stay confined to contract disputes. They can become Exhibit A in a much larger employment-law battle.

The case was brought by several former sales employees who alleged gender discrimination, retaliation, hostile work environment, and unlawful noncompete practices. According to the complaint, Boston Beer required broad noncompete agreements for sales employees and aggressively enforced them against departing workers. The plaintiffs claimed those restrictions trapped employees in jobs they wanted to leave, prevented them from pursuing opportunities with competitors, and amplified the effects of alleged discrimination and retaliation.

Boston Beer denied the allegations. The parties have now settled.

The settlement itself doesn't establish liability. But the allegations offer several important lessons for employers.

A noncompete will be judged by the company that enforces it.

Many employers view restrictive covenants as stand-alone agreements. Courts, juries, and regulators often do not.

When an employee alleges discrimination, harassment, retaliation, or other workplace misconduct, every employment practice comes under scrutiny. A noncompete that might otherwise seem reasonable can start to look punitive when viewed against allegations that the employee was trying to escape a toxic work environment.

Employers should assume that any restrictive covenant will eventually be examined in the context of the company's broader employment practices.

Stop using one-size-fits-all restrictions.

One of the lawsuit's central allegations was that Boston Beer used the same restrictive covenant across broad categories of employees.

That's a mistake.

The strongest restrictive covenants are tailored to the employee's actual role, responsibilities, and access to confidential information. The farther an agreement stretches beyond those legitimate business interests, the more likely it is to be challenged.

If your sales representative, regional manager, and executive vice president all sign essentially the same agreement, it may be time for a review.

Enforcement matters as much as drafting.

Many employers focus almost exclusively on whether a restrictive covenant is enforceable.

A better question is whether enforcing it advances a legitimate business objective.

The complaint alleged that Boston Beer repeatedly contacted competitors and threatened litigation against departing employees and their new employers. Whether those allegations were true is ultimately beside the point for other employers. The case demonstrates how quickly aggressive enforcement can create litigation risk that extends well beyond the restrictive covenant itself.

A demand letter intended to protect customer relationships can easily become evidence in a retaliation claim.

Employees who complain create heightened risk.

Several plaintiffs alleged that adverse employment actions followed complaints about discrimination or support for co-workers who complained.

Retaliation claims remain among the most dangerous claims employers face because juries often find them easier to understand than the underlying discrimination allegations.

Before disciplining, investigating, or terminating an employee who recently engaged in protected activity, employers should slow down, document carefully, and ensure the decision is supported by objective evidence.

That advice is hardly new. Yet retaliation claims continue to be one of the fastest-growing sources of employment litigation.

Culture problems make everything worse.

What stands out from the complaint isn't just the allegations regarding noncompetes. It's how the plaintiffs connected those agreements to broader allegations of workplace culture problems.

In other words, the noncompetes didn't create the lawsuit. They allegedly magnified the consequences of everything else.

When employees believe they are trapped, unable to leave for competitors, workplace conflicts become more combustible. Complaints escalate. Investigations become more contentious. Litigation becomes more likely.

The best defense isn't a stronger noncompete. It's a workplace culture that employees don't feel compelled to escape.

Employers should view this settlement as a reminder that restrictive covenants are not merely contract documents. They are employment-law risk multipliers. When paired with strong management, fair treatment, and sound HR practices, they can protect legitimate business interests. When paired with allegations of discrimination, retaliation, or poor workplace culture, they can dramatically increase litigation exposure.

The DOL's World Cup warning is really an overtime compliance warning

2026-06-23T08:22:27.426-04:00

The Department of Labor has a message for employers in cities hosting the 2026 World Cup: We're here to help you comply with federal wage and hour laws.

Translation: We're watching.

The DOL's Wage and Hour Division recently announced compliance-assistance resources for employers in the 11 U.S. host cities preparing for the flood of soccer fans, tourists, hotel guests, restaurant patrons, bar tabs, rideshare trips, security needs, cleaning shifts, temporary staffing, and event work that will come with the tournament. The agency specifically pointed employers to resources for industries expecting World Cup-driven spikes, including restaurants, hotels, and other businesses serving fans.

That sounds friendly enough.

It's also a warning.

Because when demand spikes, hours spike. When hours spike, overtime spikes. And when overtime spikes, wage-and-hour mistakes multiply.

The FLSA does not contain a "but it was really busy because of soccer" exception.

It does not contain a "we were short staffed" exception.

It does not contain a "this was a once-in-a-generation event" exception.

And it most certainly does not contain a "we made everyone a manager for the month" exception.

If a non-exempt employee works more than 40 hours in a workweek, you pay overtime. One and one-half times the employee's regular rate. Not a flat bonus. Not free tickets. Not pizza. Not "we'll take care of you later." Overtime.

Special events create special wage-and-hour risks because employers start improvising.

They add shifts without thinking through overtime.

They pull assistant managers into non-managerial work and assume the salary still solves the problem.

They bring in temporary help and forget that someone has to track hours accurately.

They use volunteers who are not really volunteers.

They let employees work off the clock because "everyone is pitching in."

They miscalculate the regular rate by excluding bonuses, shift premiums, commissions, or other compensation that must be included.

They rely on tip pools that do not comply with the law.

They schedule minors for hours or jobs that child-labor rules do not permit.

They ask employees to answer texts, take calls, set up events, or close out work after clocking out.

That is how a great business opportunity turns into a DOL investigation.

And once the DOL starts asking questions, "we were slammed" is not a defense. It's called "Exhibit A."

Hospitality employers should be especially careful. Restaurants, bars, hotels, breweries, caterers, parking companies, security vendors, cleaning contractors, event venues, and staffing agencies all live in the danger zone during major events. These businesses often run on variable schedules, tipped employees, shift swaps, side work, temporary labor, and managers who jump in wherever needed.

That is normal operationally.

It is dangerous legally.

The fix is not complicated, but it does require discipline.

Audit classifications now. Make sure the employees you treat as exempt actually satisfy both the salary and duties tests. A title does not make someone exempt. Calling someone an "event manager" does not magically erase overtime if the job is mostly serving beer, checking IDs, cleaning rooms, stocking coolers, running food, or working a register.

Train supervisors before the rush. Managers need to understand that they cannot encourage, tolerate, or ignore off-the-clock work. If they know work is being performed, the time must be paid.

Plan schedules around the 40-hour workweek. The FLSA does not care that your payroll period is two weeks. Averaging 30 hours one week and 50 the next does not avoid overtime. That 50-hour week includes 10 overtime hours.

Review your regular-rate calculations. Bonuses, premiums, commissions, and some incentive payments may need to be included in the overtime calculation. This is one of the easiest places for employers to get it wrong.

Watch joint-employment issues. If you use staffing agencies, vendors, contractors, or event partners, do not assume their payroll mistakes stay their problem. Shared control can become shared liability.

Be careful with volunteers. For-profit businesses generally do not get free labor just because someone is excited about the event. Calling someone a volunteer does not make them one.

Keep clean records. If the records are bad, the employer almost always loses the wage-hour fight.

The World Cup will be great for host cities. It will be great for restaurants, hotels, bars, breweries, event venues, transportation providers, security companies, and countless other employers that will benefit from the surge.

But the FLSA is not suspended for kickoff.

Big events do not change the rules. They just increase the odds that employers will break them.

WIRTW #801: the 'dads' edition

2026-06-19T08:28:43.910-04:00

Sunday is Father's Day. Which makes this lawsuit especially worth paying attention to.

Emilio Arellano claims that Golden State Cider fired him after he took leave and sought additional flexibility to help care for his prematurely born son.

According to the lawsuit, his employer didn't respond with support. It responded with retaliation. The company denies wrongdoing. The case remains pending.

But the allegations highlight an issue many employers still fail to recognize:
Workplace discrimination against fathers is real.

Not because employers think fathers are caregivers. Because they think they aren't.

When employers assume fathers should prioritize work over family, they're relying on the same unlawful sex stereotypes that protect mothers when employers assume they should shoulder caregiving responsibilities.

The EEOC has been saying this for decades. Denying leave, flexibility, or opportunities to fathers that would be afforded to mothers can violate Title VII.

And the legal risk is increasing.

Last year, the Supreme Court held in Ames v. Department of Youth Services that Title VII protects "any individual" and that courts cannot impose higher burdens on so-called majority-group plaintiffs.

The EEOC has embraced that principle, making clear that discrimination is discrimination, regardless of who brings the claim.

That matters for fathers.

A dad who is treated differently because he doesn't conform to traditional expectations about gender and caregiving isn't bringing a novel claim. He's bringing a sex discrimination claim.

Which brings us to a question every employer should ask: If this employee were a mother instead of a father, would we have responded the same way?

If the answer is no, you've identified a legal risk. And perhaps a cultural one, too.

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

Is Beer at Work a Problem, or Is It a Sign of Something Bigger? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Why Employees Aren't Transparent About Their AI Usage — via Harvard Business Review

Microsoft AI chief walks back comments about AI taking over white-collar work — via The Verge

Employees say they spend more time managing AI than producing work — via HR Dive

The Racial Slur the CEO Knew About. The $21 Million Verdict That Followed. — via Eric Meyer's Employer Handbook Blog

DOL Issues Four New Opinion Letters: What Employers Need to Know About Exemptions, Bonuses, Breaks, and Timekeeping — via Employment Law Letter

Third Circuit Rejects "Overtime Gap Time" Claims Under the FLSA, Deepening Circuit Split — via Hiring to Firing Law Blog

Does an employer have to "accommodate" an employee who fails a drug test? — via Employment & Labor Insider

To See or Not to See: Disciplined Worker Entitled to View Employer's Surveillance Footage — via EntertainHR

Depression and Other Mental Health Conditions in the Workplace: An Increasing Employer Challenge — via EntertainHR

Arbitration Might Not Make Sense for Small Businesses — via Above the Law

World Cup Delivers Early Win for Beer: Draft +17% YoY, Imports Take Share, Lagers Dominate, per BeerBoard — via Brewbound

What If the World Cup Teams Were Your Colleagues? — via HR Gazette

Anheuser-Busch Is Getting the Bigotry It Paid for With Bud Light's UFC Deal — via VinePair

Are Big Craft Breweries Viable Anymore? — via Beervana

Pride Night, Bible Verses, and When Title VII Protections Collide

2026-06-18T06:49:00.000-04:00

Three San Francisco Giants pitchers are facing backlash after writing a Bible passage on their Pride Night caps during a team-sponsored LGBTQ+ celebration. The players cited Genesis 9:12-16, the biblical passage describing the rainbow as God's covenant with humanity. Critics viewed the gesture as a deliberate rebuke of Pride Month and the LGBTQ+ community. The Giants apologized for the pain caused. Major League Baseball warned the players for violating uniform rules.

Predictably, the story has become another front in America's never-ending culture war.

But strip away the politics and outrage for a moment, and what's left is a workplace issue every employer should understand.

While the setting is a Major League Baseball clubhouse, the legal and practical issues are no different from those employers confront every day.

The Giants wanted to send a message of inclusion. The players wanted to express their religious beliefs. Those objectives collided in public.

Welcome to the modern workplace.

Many commentators are treating this controversy as a simple morality play. It isn't.

For employers, this is a textbook example of what happens when two different Title VII protections collide.

On one side sits religious accommodation. Employees generally have the right to express sincerely held religious beliefs, and employers must accommodate those beliefs unless doing so creates an undue hardship.

On the other side sits protection against harassment and discrimination based on sexual orientation. Employers have a legal obligation to provide a workplace free from unlawful harassment and to ensure LGBTQ+ employees are treated with dignity and respect.

What happens when one employee's expression of faith is perceived by another employee as hostility toward their identity?

That's where the easy answers disappear.

Too often, employers approach these conflicts as though one protected class should automatically prevail over another. The law doesn't work that way. Title VII protects both religious employees and LGBTQ+ employees. An employer that reflexively sides with one group without considering the rights of the other creates legal risk and workplace discord.

That does not mean employers should sit on the sidelines. They shouldn't. But neither should they become arbiters of competing belief systems. An employer's role is not to decide whether a religious viewpoint or a social viewpoint is more worthy of protection. Its role is to regulate workplace conduct. The focus should be on behavior and workplace impact, not ideology. In other words, employers should protect beliefs and referee conduct.

The better approach is to focus less on the viewpoint being expressed and more on its workplace impact.

Is the conduct directed at a particular employee? Is it creating a hostile work environment? Is it interfering with someone's ability to do their job? Is it merely an expression of personal belief, or has it crossed the line into harassment or discrimination?

Those questions matter because Title VII does not require employers to eliminate disagreement. It requires employers to prevent unlawful harassment.

That's an important distinction.

Employees are entitled to hold different religious, political, and social beliefs. They are not entitled to harass one another because of those beliefs. Likewise, employees are entitled to be free from discrimination because of their sexual orientation, but that protection does not automatically prohibit coworkers from expressing religious viewpoints with which they disagree.

The challenge for employers is finding the line between protected expression and unlawful conduct. That line is rarely bright, often controversial, and increasingly common in today's workplace.

The Giants attempted to navigate that tension in their response. The organization reaffirmed its support for Pride Night while also acknowledging that individual players may make personal choices regarding participation in team-sponsored events.

That approach will satisfy almost no one.

Some LGBTQ+ advocates argue the players should have faced discipline because their conduct undermined the purpose of the event. Others argue the players should have been free to express their faith without criticism.

Both sides miss an important point.

Inclusion isn't tested when everyone agrees. It's tested when people don't.

Any employer can create a workplace that welcomes people who share the same values. The real challenge is creating a workplace where employees with fundamentally different beliefs can coexist professionally and respectfully.

That doesn't mean every form of expression must be permitted. Employers can and should enforce neutral workplace rules. MLB's warning reportedly stemmed from a uniform-policy violation, not the content of the message itself. That's an important distinction. Content-neutral rules are often far easier to enforce than rules that appear to target a particular viewpoint.

The Giants controversy isn't really about baseball. It's about a challenge employers face every day. When religious expression and LGBTQ+ protections appear to collide, the answer isn't to choose a side. The answer is to apply the same standard to everyone, focus on conduct rather than ideology, and remember that Title VII protects both groups. The hardest workplace issues arise when two protected rights point in different directions. That's exactly when employers need to be most careful.

Regrets, I've had a few.

2026-06-17T10:17:41.455-04:00

My life's biggest regret is that I never studied abroad.

The opportunity was there. I just didn't take it. At the time, it felt like too much of a risk. It felt expensive. It felt complicated. And it just felt easier to stay where I was comfortable.

I've regretted it ever since.

And even though I've spent decades making up for lost time, I've never stopped wondering how different my life might have been had I gotten on that plane when I was 20 instead of staying home. The travel bug has since bit me hard. I just wish I had started sooner.

So years ago, I made a promise to myself that if I ever had kids, I would encourage them not to make the same mistake.

Apparently, my sales pitch worked.

This fall, my daughter will spend the first semester of her junior year in college studying abroad in Marseille, France.

And on Monday, we put my 17-year-old son, a rising high school senior, on a plane to London for a three-week summer program studying sports management.

For him, this trip is more than a summer experience. It's his first step toward a goal he's been talking about for years. He wants to study sports management full-time at a university in England. He wants to build a career in football. And ultimately, he hopes to work for a Premier League club.

It's an ambitious dream. The odds are long. But every meaningful dream starts with a first step. For him, that first step was boarding a plane to London.

As parents, we spend years trying to help our kids navigate risk, uncertainty, disappointment, and failure. Yet some of the most important moments in life require us to do the opposite. We have to encourage them to leave the nest. To venture beyond To venture beyond their comfort zone and ours. To embrace uncertainty. To take chances. To trust that they'll be stronger because of it.

That's what studying abroad represents. It's not just education. It's growth.

And while I'm a little jealous that my kids are getting the opportunity I passed up, I'm far more grateful that they're willing to seize it.

Sometimes the best way to deal with your regrets isn't to dwell on them. It's to help your kids seize the opportunities you let pass by.

Sometimes the merits don't matter. And that's exactly the point.

2026-06-15T06:58:00.000-04:00

Imagine you walk into court with what appears to be a strong case. The law is on your side. The facts are on your side. Even the judge seems troubled by what the government is doing. And then you lose anyway. Not because you're wrong. Because the court says it lacks the power to decide whether you're right.

That's essentially what happened last week in FreeState Justice v. EEOC.

The case arose from the EEOC's response to President Trump's January 2025 executive order recognizing only two sexes, male and female. Following that order, then Acting EEOC Chair Andrea Lucas announced that the agency was rolling back what it characterized as the prior administration's "gender identity agenda."

Words turned into actions.

According to the lawsuit, the EEOC stopped processing certain categories of gender-identity discrimination charges. The agency resumed investigating some claims involving hiring, firing, and promotion decisions. But it allegedly continued refusing to process claims alleging harassment based on gender identity and retaliation against employees who complained about such discrimination.

In practical terms, transgender employees could still file certain discrimination charges with the EEOC. But if a transgender employee alleged workplace harassment or retaliation, the agency allegedly would not investigate those claims.

The lawsuit also alleged that the EEOC directed state fair-employment agencies that it would no longer reimburse them for investigating gender-identity charges on the agency's behalf.

The plaintiff, an LGBTQ+ legal-services organization called FreeState Justice, argued that these policy changes effectively denied transgender workers access to protections that Title VII guarantees.

They have a point.

In 2020, the Supreme Court held in Bostock v. Clayton County that discrimination because of transgender status is discrimination because of sex under Title VII. Since then, the EEOC has treated gender-identity discrimination claims as falling within the statute's protections.

The lawsuit essentially alleged that the EEOC had decided to stop enforcing part of Title VII for a particular group of employees.

That's why Chief Judge George Russell's opinion contains a remarkable phrase.

Describing the EEOC's actions, he called them "deeply troubling."

Judges don't casually insert language like that into opinions. It's hard to read those two words as anything other than an acknowledgment that the court saw serious issues with what the agency was doing.

But then the judge did something that infuriated the plaintiffs and anyone who agrees with them. He dismissed the case without ever deciding whether the EEOC's conduct was legal.

The problem wasn't the merits. The problem was standing.

The court relied heavily on the Supreme Court's 2023 decision in United States v. Texas. That case reaffirmed a basic principle about separation of powers: courts generally do not get to tell executive agencies whom to investigate, whom to prosecute, or how aggressively to enforce the law.

Those decisions belong to the Executive Branch.

The plaintiff wasn't asking the court to stop the government from doing something. It was asking the court to require the government to do something — namely, investigate and process more discrimination charges. Under Texas, that's usually a bridge too far.

And so the court never reached the underlying question that everyone actually cares about: whether the EEOC's policy violates Title VII. Instead, the case ended at the courthouse door.

It's easy to find that outcome frustrating. After all, if a court believes government conduct is "deeply troubling," shouldn't it decide whether that conduct is lawful?

Not necessarily.

One of the most important principles in our legal system is that courts are courts of limited jurisdiction. They don't get to decide every dispute. They don't get to answer every important question. They don't get to issue advisory opinions simply because an issue matters. They can decide only the cases the Constitution and Congress authorize them to decide.

That's where standing comes in. Standing doctrine often feels like legal housekeeping. Lawyers love arguing it. Clients hate hearing about it. But standing serves an important function. It prevents courts from becoming roving commissions empowered to supervise every policy disagreement between citizens and the government.

Without those limits, judges could effectively become policymakers. That's a dangerous road regardless of whose policies are at issue.

The lesson from FreeState Justice is not that the EEOC was right.
The lesson is not that the EEOC was wrong.
The lesson is that sometimes a court never gets that far.

Sometimes a case is decided on the merits.
Sometimes it's decided on procedure.

And while it can be maddening to watch procedure trump substance — especially when the court itself describes the underlying conduct as "deeply troubling" — procedural rules are what keep our legal system functioning. They define the boundaries of judicial power. They preserve the separation of powers. They ensure that courts remain courts rather than political actors.

The alternative is a system in which judges decide whichever disputes they think deserve an answer. That might sound appealing when the judge agrees with you. It becomes a lot less appealing when the judge doesn't.

That's why procedure matters. Not because it's exciting. Because it's what stands between the rule of law and the rule of whoever happens to hold judicial power.

DOJ's attack on disparate impact gets Title VII exactly backwards

2026-06-10T06:59:50.519-04:00

The Department of Justice just issued a legal opinion claiming that disparate impact liability is unconstitutional because it supposedly "incent[s] — and even coerce[s] — employers to make race-based decisions to avoid liability."

That's a remarkable claim.

It's also a fundamental misunderstanding of how disparate impact law actually works.

Disparate impact claims exist precisely because they target facially neutral policies. No one is alleging intentional discrimination. No one is claiming that an employer adopted a policy because of race, sex, or some other protected characteristic.

The entire point of disparate impact is that a neutral rule can nonetheless operate as an unnecessary barrier to employment opportunities.

In fact, that's exactly why the Supreme Court recognized disparate impact liability in Griggs v. Duke Power Co. in 1971. The employer in Griggs required a high school diploma and certain aptitude test scores for transfers and promotions. The policies were facially neutral. They said nothing about race. Yet they disproportionately excluded Black employees and bore little relationship to successful job performance. The Supreme Court held that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." The Court's point was simple: employment criteria should measure a person's ability to perform a job, not create arbitrary barriers that disproportionately exclude protected groups.

Think aptitude tests. Physical fitness standards. Educational requirements. Criminal background checks. Credit checks. Hiring algorithms. AI screening tools.

None of these practices are discriminatory on their face. Yet all have the potential to disproportionately exclude certain protected groups.

Title VII's disparate impact framework asks a simple question: Does the employer have a legitimate business reason for using the practice?

If the answer is yes, the employer wins.

That's the part DOJ's opinion conveniently ignores.

Disparate impact liability does not require employers to adopt quotas. It does not require race-based hiring. It does not require preferential treatment.

It requires employers to justify employment practices that disproportionately exclude protected groups.

That's it.

An employer that uses a criminal background check because it is job-related and consistent with business necessity has a defense. An employer that uses a validated aptitude test tied to actual job performance has a defense. An employer that can demonstrate a legitimate need for a particular hiring criterion has a defense.

The law does not say, "You must hire more people from Group X."

The law says, "If your policy disproportionately screens out Group X, explain why the policy is necessary."

Those are very different things.

What's especially strange about DOJ's position is that it essentially assumes employers will engage in intentional discrimination to avoid being accused of unintentional discrimination.

That logic makes no sense.

If an employer responds to disparate impact concerns by making race-based employment decisions, that employer has created an entirely different legal problem. Title VII already prohibits intentional discrimination.

The cure for a potentially problematic employment practice is not race-conscious decision-making. The cure is validating the practice, modifying it, or eliminating it if it lacks a sufficient business justification.

The practical implications of this position could be enormous.

Consider criminal background checks.

For years, employers have been advised to carefully tailor criminal history screens to the requirements of specific jobs because broad exclusions can disproportionately affect certain racial groups. Employers have been encouraged to consider the nature of the offense, the time elapsed since conviction, and the relationship between the offense and the job.

Under DOJ's new theory, those concerns could largely disappear.

The same would be true for educational requirements that aren't actually necessary for job performance. Aptitude tests that have never been validated. Physical requirements that exceed what the job actually demands. AI hiring tools that systematically exclude qualified candidates.

Ironically, many of these are the very types of employment criteria that gave rise to disparate impact liability in Griggs more than five decades ago.

The question would no longer be whether these practices create unnecessary barriers to employment.

The question would be whether someone can prove intentional discrimination.

That's a much higher hurdle.

And that's exactly why disparate impact has been a cornerstone of civil rights enforcement for more than half a century.

Discrimination doesn't always announce itself with a racist memo or a smoking-gun email. Sometimes it appears through systems, policies, and practices that produce exclusionary outcomes despite facial neutrality.

That's why Congress codified Griggs' disparate-impact framework in the Civil Rights Act of 1991. That's why the Supreme Court has repeatedly recognized it. And that's why the EEOC has spent decades enforcing it.

The DOJ's opinion may signal the administration's enforcement priorities. It may embolden employers to challenge disparate impact claims. It may even preview future litigation aimed at persuading courts to revisit longstanding precedent.

But that would require overturning more than fifty years of settled law dating back to Griggs v. Duke Power.

Let's not pretend that disparate impact liability somehow forces employers to engage in intentional discrimination. The doctrine exists because facially neutral employment practices can sometimes function as unnecessary barriers to equal employment opportunity. That's not a bug in Title VII. It's one of the statute's core features.

Eliminating disparate impact liability would not create a more merit-based workplace.

It would simply make it harder to challenge employment barriers that disproportionately exclude protected groups while serving little or no legitimate business purpose.

Unpaid leave is an ADA reasonable accommodation; it just can't be the only one you offer

2026-06-09T07:25:13.175-04:00

If your ADA accommodation policy starts with "take unpaid leave," you're doing it wrong.

Just ask the 15 Dunkin' Donuts franchisees that recently agreed to pay $250,000 to settle an EEOC disability discrimination lawsuit.

According to the EEOC, these franchisees maintained a policy that refused to provide reasonable accommodations to employees with medical restrictions. Instead, workers were placed on unpaid, indefinite leave until they could return to work with no restrictions whatsoever. In other words, if an employee wasn't "100% healed," they weren't working.

The EEOC calls this a "100%-healed" policy. The ADA calls it unlawful.

Too many employers mistakenly assume that if an employee has medical restrictions, the safest course is to send them home until they're fully recovered. That instinct is understandable. It's also exactly what the ADA is designed to prevent.

The ADA requires employers to engage in an interactive process with employees seeking accommodations and to conduct an individualized assessment of whether they can perform the essential functions of their jobs with a reasonable accommodation. Sometimes that assessment and interactive process results in modified duties. Sometimes it's a schedule change. Sometimes it's assistive equipment. And yes, sometimes it's a leave of absence.

Leave can absolutely be a reasonable accommodation under the ADA. It just can't be the only accommodation you're willing to consider.

An employee with lifting restrictions might still be able to perform the essential functions of a cashier position. An employee recovering from surgery might need a temporary schedule adjustment. An employee with a mobility impairment might need a workstation modification. Automatically placing these employees on unpaid leave skips the interactive process entirely and assumes that disability equals inability.

That's precisely what got these Dunkin' franchisees into trouble.

The EEOC also alleged that employees were effectively forced to resign or were terminated because they couldn't provide a doctor's note releasing them to work without restrictions. That's another hallmark of an unlawful 100%-healed policy. The ADA doesn't require employees to be restriction-free. It requires employers to determine whether employees can perform their jobs with reasonable accommodation.

The agency's settlement announcement contains a quote every employer should tape to its ADA policy manual: "The ADA requires employers to individually assess reasonable accommodations and grant those which do not pose an undue hardship for the employer. Uniform policies eliminating such individual considerations are red flags for ADA violations."

That's the lesson every employer should take from this settlement.

If your handbook, leave policy, or accommodation practices contain language requiring employees to be fully recovered, have no restrictions, or be 100% healed before returning to work, fix it now. Likewise, if your managers routinely respond to medical restrictions by immediately placing employees on unpaid leave without exploring other options, you're creating the same risk that cost these franchisees a quarter-million dollars.

The ADA requires individualized assessments, not automatic decisions. If your default response to workplace restrictions is unpaid leave, you're not engaging in the interactive process. You're building the plaintiff's case for them.

The EEOC's new Enforcement Plan is way more politics than strategy

2026-06-08T09:46:12.421-04:00

The EEOC has replaced its 2024-2028 Strategic Enforcement Plan with a new National Enforcement Plan for 2025-2029. The change is more than cosmetic. It reflects a significant shift in what the agency believes its mission should be.

To be clear, intentional discrimination against anyone because of race, sex, religion, national origin, age, disability, or any other protected characteristic is unlawful. Full stop. Title VII protects everyone. An employer cannot justify discrimination simply because it occurs in the name of diversity, equity, or inclusion.

But that's not really the story here.

The story is what the EEOC has chosen to prioritize.

The agency's stated Chair Priorities now include "remedying DEI-related race and sex discrimination," "protecting American workers from anti-American national origin discrimination," "defending women's rights to single-sex spaces at work and workers' rights to express the binary nature of sex," and protecting religious liberty and religious accommodations. The plan also repeatedly identifies DEI programs, hiring initiatives, and workplace diversity practices as enforcement targets.

None of these issues fall outside the EEOC's jurisdiction. If an employer intentionally discriminates based on race, sex, religion, or national origin, the agency should investigate. The question is whether elevating these issues to the agency's highest enforcement priorities reflects a neutral assessment of workplace discrimination or a political response to the culture-war issues dominating today's headlines.

The most revealing sentence in the entire document may be the one few employers will notice. The EEOC expressly states that it will use its enforcement authority "to advance the Administration's policy objectives."

That's an astonishing admission. The EEOC was not created to advance presidential policy objectives. It was created to enforce federal anti-discrimination laws. Those are not always the same thing.

Every administration leaves its fingerprints on federal agencies. That's politics. But this plan reads less like a neutral enforcement roadmap and more like a political document designed to reassure the White House that the agency is aligned with its culture-war priorities.

For most of its history, the EEOC has focused its resources on combating discrimination that has historically excluded and marginalized workers from equal employment opportunity. This plan does not abandon that mission outright. But it unmistakably shifts the agency's attention toward issues that have become central to the current Administration's political agenda.

An EEOC focused on rooting out discrimination wherever it exists is fulfilling its statutory mission. An EEOC focused on advancing the political objectives of its boss is something very different.

What should employers do? Don't overreact, but don't ignore the signal. Review DEI initiatives for legal compliance. Ensure accommodation processes work effectively for both disability and religious requests. Revisit policies addressing sex-segregated facilities, pronoun usage, and employee expression. Most importantly, continue making employment decisions based on qualifications, performance, and business needs—not politics.

Administrations change. Enforcement priorities change. The law changes more slowly. Smart employers should keep their focus there.