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 continued instability and fluctuation with the (attempted) changes in federal labor and employment law resulting from executive orders (EOs) and court decisions, so check with us or another employment lawyer before taking any action based on something in our posts.
The post on Sunday 6/1/2025 told us federal appeals court clarifies limits on ADA medical documentation requests. Employers pay attention!.
The plaintiff was a patient access specialist who requested accommodations due to anxiety and depression. She submitted a note from her nurse practitioner stating she could not work more than eight hours per day. The defendant, St. Vincent Health, requested further clarification from her healthcare provider to better understand the basis for the restriction. When the plaintiff failed to provide additional documentation, the company did not implement the accommodation. She later resigned and sued, alleging failure to accommodate and retaliation under the ADA. The federal appellate court sided with the employer, affirming summary judgment in its favor. Among the court’s findings were:
- Requesting medical clarification was lawful. See the post for the court’s rationale.
- No ADA violation: again, see the post for the court’s reasoning here.
- No retaliation proven: The plaintiff’s resignation did not amount to constructive discharge and there was no evidence of retaliatory intent.
So why do employers care about this decision? It stands for the proposition that when evaluating accommodation requests, employers can lawfully seek additional documentation if initial submissions are vague or incomplete. But there are still limits as noted in the post.
Employers should keep clear and contemporaneous records of accommodation requests and follow-up efforts – they can be used as a defenses if claims arise.
The ultimate use of the decision is in the post.
TAKEAWAY: Employers must know their accommodation obligations – but part of that is knowing what it is that must be accommodated, hence the need for certain medical information.
The post on Monday 6/2/2025 told us federal court nullifies EEOC guidance on LGBTQ+ protections. But is it effective?
On May 15, 2025, a federal court vacated portions of the EEOC’s workplace harassment guidance – specifically, guidance on harassment based on sexual orientation and gender identity. The court vacated portions of the guidance because the EEOC allegedly “exceeded its statutory authority by issuing” it and by “requiring bathroom, dress, and pronoun accommodations inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.” Let’s go a bit deeper …
Despite the Supreme Court’s holding in Bostock that discrimination based on sex in hiring or firing decisions violates Title VII’s prohibition on sex discrimination, the district court here vacated the EEOC’s guidance based on its allegedly “expanded” definition of sex discrimination as including sexual orientation and gender identity. This was based on Trump’s executive order recognizing sex as binary and immutable (which has created uncertainty for employers as court decisions see-saw).
What the Bostock court specifically held as the basis for its ruling is in the post. The Court’s key holding there then clearly stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” After the Bostock decision was issued, the EEOC published guidance in 2021 stating employers may not deny employees access to bathrooms, locker rooms, or showers aligning with gender identity. The guidance went farther as noted in the post. That 2021 guidance was enjoined, but then the EEOC issued new guidance in 2024 which the parties challenged.
On January 20, 2025, President Trump issued Executive Order 14168 (“Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”) What the EO does is in the post. It also instructed the EEOC to rescind portions of its guidance that were inconsistent with the EO. That, of course, was just fine with EEOC Acting Chair Andrea R. Lucas who on January 28, 2025, rolled back much of the Biden-era technical assistance related to discrimination and harassment against LGBTQ+ individuals. But there was saving grace for the 2024 guidance; see the post.
So then comes this case where the federal district court granted summary judgment to the State of Texas and the Heritage Foundation, both of which had sued to block the EEOC’s 2024 guidance. The court’s conclusions included that the EEOC may not legally define “sex” to include sexual orientation and gender identity and the other things listed in the post.
The court’s reasoning was based on its conclusion that the EEOC’s guidance is “final agency action” and that it “produces legal consequences and determines rights and obligations of covered employers.” How the court characterized the guidance is in the post.
So now what are employers to do? First, take a breath. It is still unclear whether the court’s order has nationwide impact (or just applies to the plaintiffs in the case). Further, the order vacating the EEOC guidance does not necessarily mean that employers are not required to abide by the EEOC’s enforcement guidance. Bostock continues to be good law. But courts across the country have differed on whether the Bostock decision extends to bathrooms, locker rooms, showers, or similar facilities as well as pronoun and name usage. Various state and local laws may fill that gap with certain restrictions or prohibitions.
It is not surprising that Acting EEOC Chair Lucas and the Trump administration have indicated their opposition to the EEOC guidance. What that means procedurally for this case and its holding is noted in the post.
TAKEAWAY: Employers in all states should review their policies and practices to ensure compliance with applicable state and federal laws banning discrimination based on sex. Consult with an employment lawyer.
The post on Tuesday 6/3/2025 said PIP This: The Expansion of Actionable Adverse Employment Decisions in the Wake of Muldrow v. City of St. Louis. Something else for which employers should remain alert. …
Unless your head has been in the sane, you know that over the last year or so (yes, even farther back than the current Administration) employers have faced increased claims from employees testing what constitutes an actionable adverse action under the anti-discrimination provision of Title VII. Jumping off from the Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), employees have alleged that common employment practices from performance improvement plans (“PIPs”) to negative performance reviews left them “worse off,” and, thus, constitute actionable adverse employment actions under Title VII. The claims have caused many employers to reconsider their past practices and policies.
The rationale underlying the current shift can be found in Title VII itself. The statutory language, as well as what is required to establish a violation, is all in the post. Prior to Muldrow, a circuit split had developed regarding whether materiality was a requirement.
But then in Muldrow the Supreme Court rejected the heightened standard, holding that the text of Title VII does not contain a “significance test” nor does it require an employee to show economic or tangible changes in the terms and conditions of the employee’s employment. Rather, what an employee has to chow is as noted in the post. The allegations in Muldrow centered around an alleged discriminatory job transfer, but employees have adapted the argument made in that case to many common employment decisions employers make on a daily basis.
Recent decisions from trial and district court decisions around the country applying the rationale in Muldrow illustrate that the range of actionable conduct is much greater than previously accepted by many courts. Examples of the things that might qualify are listed in the post. But due to the number of cases still pending, it remains unclear exactly how far courts will extend the Muldrow standard.
TAKEAWAY: Muldrow was very employee-friendly and employees are pushing the limits as a result. Employers should be cautious when making employment decisions that are in any way adverse to ensure compliance with Title VII. Again, consult with an employment lawyer.
The post on Wednesday 6/4/2025 explained that City recommendation may force Mayor to make tough choice. Should condo or HOA Board members be allowed to serve on municipality board too? A 15-word proposed change to a City Charter that would prohibit city commissioners from serving on a homeowner or condominium association set off an impassioned defense from the Mayor at a recent city commission meeting.
After winning re-election in March, Railey was selected by her colleagues to serve as mayor for one year. She is also president of the Wynmoor Community Council. The council is the master association of Wynmoor Village, a community with about 9,000 residents. What Railey said about the change is in the post.
From where did the change originate? See the post. Railey talked about why she thinks the change is bad – see the post. But what is interesting is the backstory on what led to the change – yes, that too is in the post.
Craig Valvo, who served as chair of the committee, explained the change is to protect the office from the perception of conflict of interest. What he pointed to, and his statement, are in the post. Another commissioner weighed in too – see the post.
Even the perception of a conflict can be “weaponized” and used against a commissioner. That is what happened here in the March municipal election. The details are in the post.
But the change is not a done deal. The procedure that must be followed is detailed in the post. Stay tuned until the fall 2026 election.
And how did Railey vote on the committee’s recommendations? See the post.
TAKEAWAY: Is there any prohibition in your Governing Docs on the qualifications of Directors of your condo or homeowners’ association (i.e., can they also hold office in the municipality in which the association is located)? Should there be such a prohibition?
In the post on Thursday 6/5/2025, we stressed that you must understand your legal obligations as condo or HOA board member.
This post arises in NV, where there are specific laws that came into play, but look at the facts and take some pointers back to your scenario.
At a recent commission hearing, the Nevada Real Estate Division heard many different allegations or violations, including the following:
Operating without the statutory required three-board members. This is a problem for many associations because homeowners do not want to serve on the board. (How did the commission rule? See the post).
Signing checks without the required two signers on checks. Or failing to provide the required proof of an annual audit for three years. Directors have a fiduciary responsibility to homeowners and must follow the law. What is done with owners’ money is a big deal.
And how about failing to adequately fund reserves and maintain the budget in accordance with the reserve study (as statutorily required)? Associations throughout the country have been seeing significant increases in assessments, often based on insurance premium increases and the need to fund reserve shortages. How have boards handled this in the past? And now? See the post.
Boards should also be clear that financial accounting is not just solely the responsibility of the management company. Failing to maintain current, accurate and properly documented financial records is a statutory violation in NV (and possibly a breach of duty in other states or under certain governing documents). What should directors be doing as fiduciaries? See the post. And make sure that your association creates, retains and/or maintains proper records.
Not just financial records though. Meeting minutes too (see the post).
And do association board members know everything about everything that might come within their reach? Of course not. There are many times that a board needs to consult the appropriate professionals – but do not because of cost. Bad bad bad. It will only cost more in the long run and might end up going very badly for the directors personally. Why? Directors have the responsibility to exercise ordinary and reasonable care by establishing policies and procedures for the operations of the association.
So what can a director do? Get educated. Start with the local Community Associations Institute chapter.
TAKEAWAY: Serving on the board of a condo or homeowners association is not just for fun; it is a legal position where you must represent the best interests of the community. Talk to a community association lawyer to ensure you know your legal responsibilities.
The post on Friday 6/6/2025 asked that employers beware: blanket policies prohibiting workplace recordings may violate the NLRA. The flip side is that employees must remember those pesky state laws …
In the past, employees recording audio or images in the workplace might have used of a bulky tape recorder or a hidden “wire” or camera. But now that smart phones with professional-grade audio and video capabilities are an integral part of our society, clandestine (or blatant) workplace recordings are much more easily accomplished (dare we say common place?) And with this increased ease of access to reliable and compact recording equipment has come a heightened employer sensitivity to workplace recordings. As a result, employers might be tempted to implement blanket policies prohibiting workplace recordings, or otherwise require management consent to make any workplace recordings.
With some exceptions (see the post), the National Labor Relations Board (“NLRB” or the “Board”) has criticized blanket policies prohibiting such activities over the last few years. Why the NLRB takes that position is in the post; some courts have agreed.
Keep in mind that Section 7 of the National Labor Relations Act (“NLRA” or the “Act”) applies to ALL workplaces, union or not. What Section 7 provides is detailed in the post. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.
The Board has noted that workplace video and audio recording is protected if certain criteria are met – see the post. Protection of confidential company information or personal health information can help an employer who seeks to restrict recordings. The Board has provided a few examples of recordings that may outweigh an employer’s restrictions, including those that capture unsafe working conditions, evidence of discrimination, and the other things listed in the post.
And here is a key for employers and employees: regardless of any state law that may require two-party consent for recording conversations (such as in Pennsylvania), the NLRB has held that the NLRA preempts state law and protection of employees’ rights under the NLRA overrides concerns about state law recording consent violations.
So what does this mean? Any restriction on workplace recordings must be legally compliant; things to consider including as part of the policy are in the post.
TAKEAWAY: Employers must walk a careful path when restricting workplace recordings. Have a labor & employment lawyer review your (proposed) policy.
Finally, in the post yesterday 6/7/2025, we learned that treated differently because of race? Sales rep files discrimination complaint. A court recently dealt with an employment discrimination case examining how anti-discrimination laws apply in workplace practices. While the case was in another country, it may well have played out the same in any US state so let’s dive deeper.
The decision addressed the responsibilities of employers to implement fair policies that prevent discriminatory outcomes.
The worker, a sales representative of African descent, claimed that he had experienced less favorable treatment as compared to his Chinese colleagues during his employment from 2018 to 2020. His allegations focused on exclusion from meetings, reassignment to less desirable sales territories, and inconsistent performance evaluations. The employer denied the allegations; its argument/defense is in the post. The court looked at whether any of the documented differences could be justified by non-discriminatory reasons under the applicable statute.
The worker joined the company as a sales representative selling office equipment to Hong Kong businesses in early 2018. He initially performed well, consistently meeting or exceeding sales targets during his first six months. But the working relationship deteriorated in late 2018 after a restructuring that brought in a new senior sales manager as his direct supervisor. The post describes evidence presented to the court about differential treatment at that point. The worker had attempted to resolve the issues internally, but then filed suit.
A key aspect of the case involved the worker’s exclusion from team meetings. Attendance records from January to June 2019 confirmed he had not been invited to four strategy meetings attended by other sales representatives with comparable responsibilities. What the department head said when asked about that in court is in the post. But the court did not believe that explanation in light of other evidence that it had (see the post). That discrepancy became a significant factor in the court’s assessment of potential discriminatory treatment.
The allocation of sales territories was another important element of the case. Documentation showed that in March 2019, the worker’s territory was changed from the central business district to an outlying area with historically lower sales potential. The employer’s human resources director testified on that. But the worker presented company records that contradicted HR’s testimony. See the post for details on both.
The court also examined the worker’s performance evaluations. His December 2018 annual review rated him as “meeting expectations” with positive comments about customer relationships. That was to be contrasted with his July 2019 mid-year review conducted by his new supervisor – see the post for what the court pointed out there. The worker argued that the significant shift in his evaluation coincided with the change in supervision (rather than genuine performance issues). He had evidence to back up his argument – see the post.
In the written decision, the court talked about how the performance evaluation process must be applied and how discrepancies affect the objectivity of the process. See the post for those details. The company presented several customer complaints allegedly filed against the worker during that time period as justification for the lower ratings. But that too backfired – see the post.
In the end, after assessing all evidence, the Court determined that several incidents formed a pattern of less favorable treatment (the standard under the law there) that the employer could not adequately justify through non-discriminatory explanations. In the US, that translates to a finding that the supposedly legitimate non-discriminatory reasons proffered by the employer were found to be pretext for illegal action.
The judge went through the burden-shifting that applied (see the post – and similar to in the US) and said that the employer did not carry its burden in at least three significant instances. The court found particularly unconvincing the employer’s explanations regarding the worker’s exclusion from meetings. The court’s statement on that is in the post.
So the Court ruled in favor of the worker on the claim of racial discrimination, awarding HK$150,000 (about $19K in US dollars) in damages for injury to feelings and HK$45,000 (about $5,700 in US dollars) for lost earnings resulting from the discriminatory treatment. What the court said as part of the judgment and the basis for the findings is in the post. The ruling also emphasized employers’ responsibilities regarding anti-discrimination policies (see the post).
The court also imposed non-monetary relief too. That is detailed in the post (and similar to what might be part of a judgment in the US).
TAKEAWAY: Employers must train their managers and supervisors on what they can and cannot say and do – the wrong thing may literally be costly for the employer.