Below is a review of the posts on Facebook and LinkedIn from the past week. You can check out the full posts by clicking on the links.
NOTE: there is still some instability and fluctuation in federal labor and employment law, so check with us or another employment lawyer before taking action based on something in our posts.
The post on Sunday 8/17/2025 noted Circuit Court breaks from EEOC on employer liability for client harassment. Yep, Loper Bright in action.
In early August, the 6th US Circuit Court of Appels ruled that a former sales representative for cleaning products manufacturer Zep, Inc., cannot proceed on her Title VII harassment claim related to the behavior of a client because she could not show the company intended for it to occur. Read that again. Ok, now let’s look at the background/history.
In the decision in Biens v. Zep, Inc. (linked in the post), while the sales rep was visiting a Zep client motel, a manager locked her in an office and asked if they could date. She said no, left, and later reported the events to her supervisor, who reassigned the client to another team. Around the same time, the sales rep was terminated, allegedly as a part of planned head count reduction related to poor economic performance. She then sued Zep, alleging that she was subjected to harassment, retaliation and discrimination based on her complaint about the client or because she is Black. The trial court dismissed her complaint and she appealed.
The 6th Circuit affirmed the dismissal, taking the opportunity to evaluate an employer’s liability when it comes to harassment at the hands of an employer’s client, rather than another employee. Let’s take a closer look.
On appeal the court said that because the client who harassed the sales rep was not an agent of Zep, the company would only be liable if it intended for her harassment to occur. Additional language from the decision is in the post.
This decision differs from the harassment guidance (linked in the post) issued last year by the EEOC. The relevant portion of the guidance (that differs from this appellate decision) is also noted in the post. The Circuit Court cited to the US Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, Secretary of Commerce (the holding and import of which is in the post) as justification for its action. See the post for the portion of the decision dealing with this. The Circuit Court also was ok being the only appellate court to take this view (since the 1st, 2nd, 8th, 9th, 10th, and 11th Circuits have all applied the standard noted in the post) because it said that the other courts either deferred to EEOC (which is no longer required post-Loper Bright) or engaged in what “often seems like judicial policymaking.” The Circuit Court did note which one of its sister circuits reached the same conclusion – see the post.
The Circuit Court found that the sales rep’s other claims also failed on two bases: because those making the termination decision did not know of the harassment and the other basis noted in the post.
TAKEAWAY: This decision is not binding on PA employers, but since the 3rd Circuit (which does govern PA cases) has not yet ruled, it is wide to keep this in mind just in case. Talk to an employment lawyer if this situation arises.
The post on Monday 8/18/2025 told us federal court confirms that mixed motive religious objections trigger Title VII protection. Here are tips for employers.
Remember those mandatory COVID-19 vaccination policies? They resulted in a tidal wave of accommodation requests grounded in faith, philosophy, politics, and personal health concerns. There is now an appellate decision (Wright v. Honeywell International) squarely addressing whether a mixed-motive objection—one containing both religious and non-religious components—can satisfy Title VII’s requirement that the employee hold a “bona fide religious belief.”
The outcome would determine whether termination of Donald Wright’s fourteen-year career with Honeywell, which occurred when he refused vaccination after his exemption request was denied, was proper. The trial court entered summary judgment for Honeywell; on appeal, the court reversed.
On appeal the Fifth Circuit (which does not govern cases in PA but should still be considered as guidance) held three main things:
- Wright produced sufficient evidence to create a genuine dispute of material fact (which prevents entry of summary judgment) on two elements of his prima facie religious-discrimination case: (a) that he possessed a sincere, bona fide religious belief opposing the vaccine, and (b) that he adequately communicated that belief to Honeywell;
- The presence of political and personal-health reasons does not defeat the religious nature of an objection as a matter of law; sincerity is “largely a matter of individual credibility” appropriate for a jury; and
- The third thing described in the post.
Accordingly the panel reversed and remanded for further proceedings. Now let’s take a deeper dive into the appellate court’s decision.
The court cited to many decisions (from courts of all levels, including a 2025 US Supreme Court decision) as listed and detailed in the post, and mentioned whether it found the case persuasive or not (and why).
As part of its decision, the court look at bona fide religious belief, notice to the employer, deference and “light touch”, and undue hardship:
- Bona Fide Religious Belief. The court emphasized that sincerity is a factual inquiry rarely suitable for resolution on summary judgment. The various facts pointed to by the court (see the post) supported this holding. Further, mixed motives—religious + political + health—do not negate protection; what Title VII provides (noted in the post) was emphasized.
- Notice to Employer. Honeywell argued that Wright never clearly expressed a faith-based ban on vaccination. The appellate court did not agree, with the effect being as noted in the post.
- Deference and “Light Touch.” See the post for what the Court reasoned here.
- Undue Hardship. Because Honeywell prevailed below on the first prongs of the prima facie case, the trial court did not reached the employer-burden stage (reasonable accommodation vs undue hardship). How this was dealt with on appeal is in the post.
Now that you know decision, let’s look at the potential ramifications (which all employers should keep in mind, even those for whom the decision is not binding):
- A religious objection need not be the sole motive;
- Companies (particularly federal contractors) must train HR and others dealing with accommodations to separate sincerity assessment from motive purity risk (with certain denials leaving an employer open to legal risk – see the post); and
- The three other things detailed in the post.
NOTE that the post also contains a description of some basic concepts that arise relative to an accommodation request.
TAKEAWAY: Employers should be alert if sincerity of religious beliefs need not be the sole basis for accommodation; know the law that applies to your scenario (and discuss it with an employment lawyer).
The post on Tuesday 8/19/2025 noted Attorney General issues DEI guidance to recipients of federal funds (and insight into other EEOC enforcement).
On July 29, 2025, Attorney General Pam Biondi issued a memorandum titled “”Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” (which is linked in the post). Why she supposedly issued it is in the post. The Memorandum reflects the current Administration’s rejection of certain practices and its effort to ensure that entities receiving federal funds to not employ “programs and activities” that “discriminate on the basis of race, color, national origin, sex, religion, or other protected characteristics – no matter the program’s labels, objectives, or intentions”.
The Memorandum identifies several “Best Practices.” They are not mandatory, but “non-binding suggestions.” Those to whom the Memorandum is targeted (think of those in the bull’s eye recently) are listed in the post.
The Memorandum discussed what it deems “Unlawful Discriminatory Policies and Practices”. After providing a non-exclusive list, the Memorandum also notes that not only actions by the grantee but also its contractors and other third parties can risk the funding. The Memorandum goes into detail on the policies and practices, including granting preferential treatment based on protected characteristics (talking of what things come under this heading and providing some examples – see the post for all of that), prohibited use of proxies (i.e., those things called by one name but really falling within an allegedly discriminatory practice) which are again in the post, segregation based on protected characteristics (with the exception and examples), unlawful use of protected characteristics (again, the description and examples are in the post), training programs that promote discrimination or hostile environments (the post again contains definitions and examples), and, finally, DOJ “Recommendations on Best Practices”. The latter include a suggestion that all workplace programs, activities and resources be open to all qualified individuals, regardless of protected characteristics, but notes that “some sex separation is necessary where biological differences implicate privacy, safety, or athletic opportunity” and the other things detailed in the post.
TAKEAWAY: Not only federal contractors but all employers should review this guidance (with an employment lawyer) to know what can affect federal funding and, more widely, possibly be subject to enforcement by the EEOC (or other applicable agency).
The post on Wednesday 8/20/2025 talked of 55+ communities – age and occupancy requirements and why/how some residents might be required to move. Know the law.
For many retirees, moving into a 55+ community represents the culmination of years of planning. These communities often promise a retirement lifestyle free from the stresses of traditional neighborhoods: quieter surroundings, active social clubs, and amenities designed specifically for older adults. But reality is setting in as these communities become more prevalent: not all residents are guaranteed a permanent spot in these communities. Understanding why — and potential ways to prevent it — could be critical for some.
The starting point is often the purpose behind a 55+ community. They exist as a legal exception to federal housing discrimination laws (called the Housing for Older Persons Act (HOPA) which is linked in the post). The requirements under HOPA are also listed in the post. Note that it talks of residents, not owners. The community must ensure that it meets those requirements – which might entail removing a resident who does not meet the criteria. (And that is aside from other potential bases of eviction – see the post).
Let’s take a step back. One of the most common reasons retirees are asked to leave a 55+ community is a change in the household’s age makeup. For example, one spouse passes away and the remaining resident is younger than the required age. Or possibly the other (common) example noted in the post. Residents need to keep these things in mind when allowing others to live in the unit on a long-term basis.
But the various restrictions of the community association can also be a basis to remove a resident. See the post for a list of common violations and the possible ramifications.
Health and safety concern related to a resident might also have an effect on their residency. Most 55+ communities are not assisted living facilities; they are not equipped (or legally responsible) to provide medical care or accommodate residents who require significant assistance. That might require someone to move elsewhere.
There are other not uncommon reasons a resident might need to move from a 55+ community. They are listed and discussed in the post.
The post also contains some tips for those thinking about moving into – or already living in – a 55+ community. The tips include reviewing (and understanding – so meet with a community association lawyer) the Governing Documents (declaration, bylaws, rules and regulations) before signing anything, asking about age-rule exceptions (i.e., what happens when residents no longer meet the age requirement), and the other things detailed in the post.
TAKEAWAY: Because a 55+ community is a legal exception to anti-discrimination laws, the community must meet certain criteria. Discuss this with a community association lawyer.
In the post on Thursday 8/21/2025, we asked: Nobody wants to run HOA, but should owners terminate it? Potential bumps in the road.
Someone who lives in a 73-home community governed by an homeowner’s association said that they have a mix of retired people (many of whom have served on the board of directors in the past) and younger people who work outside the home and/or have children and do not feel they have the time to commit to a board position. They also noted that the HOA owns a private road that runs through the community and two retention ponds. The question was since there is community property, can the community be terminated if nobody wants to serve on the HOA board?
The general answer is yes, but more specifically one must look at whether that is a good idea. What is required to terminate (dissolve) an HOA would be in its governing documents (or applicable state law). Either way, a large majority of owners will be required to vote in favor of dissolution, so that may doom it from the start. But what if there is such a majority? There might still be significant practical issues that militate against dissolution.
First, who is going to own any private road? Who is going to maintain it and how are you going to collect maintenance money from homeowners? (You know, those things the HOA does now). What will you be left with after dissolution? See the post.
Will the local municipality take over the road? Probably not. So what other option is there? See the post (for options and even more complications).
And what about detention or retention ponds? There is probably a legal requirement that the HOA maintain the pond(s), so there might be legal objection to dissolution.
Will it be easier to find people to serve on the board than to deal with the issues that arise from HOA dissolution? Perhaps. It might depend on what board members have to do – see the post.
TAKEAWAY: there are legal ways to dissolve an HOA, but that might not be in the owners’ best interests – talk to a community association lawyer.
The post on Friday 8/22/2025 told us EEOC faces lawsuit over alleged discrimination – fallout from current enforcement stance.
The Equal Employment Opportunity Commission (EEOC) has been sued for allegedly failing to enforce workplace protections for transgender workers. The suit was brought by Democracy Forward and NWLC on behalf of FreeState Justice; it claims that the EEOC and Acting Chair Andrea Lucas have unlawfully dismissed discrimination complaints (which, in turn, undermined federal civil rights laws protecting gender identity).
Lucas’ statements (attempted denials) are in the post. She even tried to support the EEOC’s actions with a Supreme Court ruling – see the post. But the same case is cited by the plaintiffs in support of the discrimination allegations against the EEOC (again, see the post).
The complaint accuses the EEOC of enabling discrimination and neglecting its legal duties. How Lucas’s Senate confirmation hearing testimony (noted in the post) figures into the allegations against the EEOC is in the post.
TAKEAWAY: This suit was probably inevitable in the current environment – stay tuned.
Finally, in the post yesterday 8/23/2025, we read about current law on vaccine mandates – and effect on religious accommodation in general (and so came full circle to our post on Monday 8/19/2025). (image by ghinzo)
Litigation in the US takes time, so federal courts continue to hear challenges to employer vaccination mandates that were imposed during the COVID-19 pandemic. Prior to 2023, employers generally held the upper hand in defending the use of vaccine mandates. But then came the US Supreme Court’s decision in Groff v. DeJoy (the holding of which is in the post). Prior to Groff, employers could reject an accommodation request if it presented more than a de minimus impact on the business. That changed with Groff – see the post.
The impact of Groff can be seen in more recent federal court decisions in the religious accommodation area. First, courts seemingly no longer accept general employer assertions about the potential risk of infection from unvaccinated employees. What an employer must demonstrate is in the post. And employers that summarily rejected religious exemption requests to vaccine mandates have had a difficult time justifying those decisions without having an individualized analysis of the request and potential alternatives.
What does this mean for employers in the health care setting? See the post – and take heed. One bright spot for employers has been courts’ apparent willingness to explore the distinction between employee objections to vaccinations resulting from religious reasons, as compared to those that appear based on political views or generalized fear of the health effects of the vaccines – but see the possible tidal change start in our post of Monday 8/19/2025.
TAKEAWAY: When a religious accommodation is requested, employers must know how to respond – put in place a policy in consultation with your employment lawyer.