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 8/31/2025 told us school district asks court to reel in EEOC charge it called a ‘fishing expedition’. Look twice at the last paragraph. OK, let’s see what happened.
in a lawsuit filed Aug. 8, a public school board of education in New Mexico alleged that a 2024 EEOC discrimination charge against it constituted an “overly broad and vague ‘fishing expedition’” that should be blocked by a federal judge as a violation of Title VII, the Administrative Procedures Act (APA) and the Fifth Amendment. The underlying EEOC charge was submitted by then-Commissioner Andrea Lucas (seeing a trend?) alleging that the district discriminated on the basis of race in its hiring practices. The board claimed that the EEOC refused a request for information about the charge’s basis, thus violating its due process rights.
The board also said the EEOC’s request for information (sort of like discovery in a court case) was so overbroad as to exceed its investigative authority. What did the EEOC request? Five years’ worth of confidential employee and applicant information (without concern for privacy/confidentiality interests of those involved). The board noted that the vast majority of the district’s students and employees are Native American, but that Lucas’s underlying charge asserted “broad and vague claims without any factual support of systemic discrimination toward Native Americans”. Ans why does the scope of this request matter? See the post.
And the board also alleged procedural errors on EEOC’s part which are discussed in the post and include the impact of the EEOC’s current lack of a quorum). Unsurprisingly, the EEOC (with now Acting Chair Lucas) did not respond to a request for comment.
All employers should keep an eye on this case given the concern this year over the EEOC’s requests and its public commitment to cracking down on DEI programs. One thing employers should consider is in the post.
TAKEAWAY: While employers should respond to EEOC inquiries, requests, or charges, any response should be made only after careful consideration and discussion with an employment lawyer.
The post on Monday 9/1/2025 noted Walmart was granted partial win in deaf worker’s ADA lawsuit.
As of Aug. 13, 2025, a federal judge had granted in part and denied in part Walmart’s motion for summary judgment (linked in the post) in the suit filed against it by the EEOC on the basis that the EEOC did not identify evidence to support its claim that Walmart constructively discharged two deaf employees in violation of the Americans with Disabilities Act. But the judge also let the EEOC’s failure-to-accommodate claims and request for punitive damages proceed and denied Walmart’s motion to exclude an EEOC expert’s testimony in the case. Let’s take a step back and look at the facts.
The EEOC alleged in a suit it filed that a Kansas Walmart violated the ADA when it refused to provide two deaf employees access to an American Sign Language (ASL) interpreter while on the job and subjected them to discrimination based on their disabilities. The EEOC alleged that the employees began working as overnight stockers in 2019 and requested ASL interpreters for use during orientation, meetings and at other times throughout their employment. Walmart’s response? No – for financial reasons (yep, stop laughing, that’s what it said). But Walmart did something else instead – see the post. The result, according to the EEOC’s suit, was that the employees routinely missed out on critical information communicated verbally during meetings, including safety-related meetings.
But that wasn’t all. The plaintiffs also requested that Walmart communicate job-related information — such as assignments — in writing. How did that work out? See the post.
The EEOC alleged that Walmart’s failure to provide reasonable accommodations negatively impacted the workers’ employment and resulted in confusion and misunderstandings regarding training, disciplinary actions and assignments. The complaint included an example that is described in the post.
Both of the employees had resigned from Walmart by November 2021 but alleged that their resignations were based on the adverse conditions to which they were subjected. The EEOC filed suit in federal court in Kansas. Walmart’s response to the EEOC’s complaint is in the post.
The post also contains a quick reminder from the EEOC of an employer’s obligations under the ADA as well as a statement from an attorney in one of its district offices.
This is not the EEOC’s first suit over a refusal to provide ASL interpreters as an accommodation. In a 2021 suit against a staffing agency, the EEOC claimed that the employer repeatedly declined to offer interpreters for staff meetings (but what it did instead is noted in the post). That suit is still in litigation.
And in 2021 the EEOC also sued Walmart for violating the ADA when the company allegedly ended the application process for a store position after an applicant requested that Walmart provide an ASL interpreter for an interview. A link to that complaint is in the post. That case too is still in litigation.
TAKEAWAY: Employers have an obligation under the ADA to provide reasonable accommodation. The larger the employer, the harder it will be for it to assert financial hardship for a requested accommodation.
The post on Tuesday 9/2/2025 was Back to Basics: What the ADA does — and doesn’t — allow employers to ask in the hiring process. It’s so important to know the law.
Let’s say a hiring manager for a hotel chain is interviewing job candidates for a receptionist position. As she opens the door to call the next candidate into the interview room, she notices that the candidate is using a wheelchair. The manager assumes that the candidate may be using the wheelchair due to some kind of medical condition. But she knows that the ADA has strict rules as to what questions employers may ask job candidates about their medical histories at various stages of the hiring process. So what are her interview parameters?
This situation is not uncommon. It can also be a trap for the unwary employer (often through its HR department) both before and after an offer is extended and even after hire. So the post reviews typical scenarios and what is or is not allowable under the ADA.
Before an offer: No medical questions allowed. In other words, with not even a conditional offer on the table, the employer may not ask anything that would require the applicant to disclose that they might have a medical condition. What does that include? See the post. EEOC guidance lists a variety of examples of prohibited questions, including asking about conditions such as asthma and mental health problems and more as detailed in the post. And it’s not just interviews that can snag an employer; things like pre-hire personality tests can be traps too. See the post.
After an offer: Inquiries and exams allowed but be consistent. This is the time after an offer has bene extended but before the person begins work. Employers can make disability-related inquiries and conduct medical examinations (including those things listed in the post), but only if the employer requires the same assessments for all entering employees of the same job category. If the exam results in revelation of the person’s functional limitations, then under the ADA the employer is obligated to engage in the interactive process. What the employer cannot do at that point, but instead must do, and the two things employers might want to consider at this state, are all discussed in the post. A scenario of a candidate who has suffered injuries due to a recent car accident and is physically incapable of doing the job now, but could do so with six weeks of recovery time, is used in the post as an example as to what an employer might do by way of meeting its accommodation obligation.
None of this should make employers think twice about conducting medical exams. Rather, they should be used as another tool to evaluate candidates, especially for physically demanding jobs. But employers need to specify what is being evaluated (and not just leave it open-ended for the evaluator). Examples of criteria to be evaluated are in the post. This will benefit the employer in the long run as it will have a base on which to move forward with its accommodation obligation (which does not go away upon performance of a medical exam). And speaking of that obligation, how the employer should memorialize its participation is in the post.
TAKEAWAY: Know when in the hiring process medical questions can be asked and medical exams required – work out a process with an employment lawyer.
The post on Wednesday 9/3/2025 told us HOA sues Google over alleged data center construction runoff. What would you do if this were happening in your community?
A homeowners’ association in Oklahoma filed suit regarding Google’s construction of a new data center, claiming that the construction is damaging its community (and specifically, a key amenity). On the business side, the data center would be the second Google investment in the state, with another site expected to open sometime in 2027 or 2028, but is that enough to outweigh other (legal) concerns?
The Homeowners Association of Park View Estates says no, that the data center construction is ruining its pond and wildlife. The suit includes pictures of the neighborhood pond and the impact of the construction. See the post and the VID embedded in the post (the before and after is quite telling …).
The suit seeks monetary compensation (listed in the post and which seems pretty low to this author).
TAKEAWAY: condo and homeowners’ associations must occasionally take legal steps to protect owners’ assets, no matter who is on the other side. Contact a community association lawyer before filing suit.
In the post on Thursday 9/4/2025, we saw HOA demanded homeowner remove garden. Respond the right way – and know applicable restrictions.
If an homeowners’ association (HOA) demands that someone rip out their vibrant, wild garden, what happens if they just plant more? In a socmedia post, someone shared a photo of an eco-conscious insect sanctuary and wrote in the caption, “Guess what HOA. You have no power here. So many bees and butterflies.” While that may have made the person feel good/better, it may or may not have been in compliance with the HOA’s rules and restrictions. Sometimes it can be confusing to understand what rights a homeowner has within an HOA. If it feels like an HOA is overreaching, there are some things an owner can (should) do:
1. Understand the rules – To interact with an HOA, it’s best to know the rules that govern. And even better, read all rules and restrictions before you buy. What to do if there are questions? See the post.
2. Document everything – Keep a record of all correspondence, including emails, texts, and letters. And more as in the post. The reason to do this is to have a record if things somehow escalate or legal action is required.
3. Be respectful and be assertive – Sometimes emotions can get heated because everyone is so invested. But it is important that everyone remain calm and professional. How that is a benefit is in the post.
4. Get to know the neighbors – other homeowners could be experiencing similar issues. There may be something to be gained with numbers. And there is a possible health benefit – see the post.
5. Attend HOA meetings regularly – And ask questions. Request clarification on things that might be unclear. There are many benefits to attending meetings – some are listed in the post. Owner attendance at meetings also serves to increase transparency (as also noted in the post).
6. Use legal resources when needed – this may not be the first step, but it is often THE step that is needed to resolve a situation. Contact a community association lawyer. A good place to start is the directory of those admitted to membership in the College of Community Association lawyers at https://www.caionline.org/advocacy/college-of-community-association-lawyers/ The lawyer will be able to tell you what your rights or obligations are in the given situation. How else they might help is in the post.
7. (Maybe) leverage the problems against the HOA where it has fallen short – Running an HOA can be extremely difficult. Most board members mean well, but they too have lives outside the community. They might not be doing everything they should be in that position (even though they mean well). Sometimes it can make a difference if multiple people have the same issue. One example is in the post.
But there are limits. Know when to pick a battle. Not every problem or disagreement is worth fighting over. Do the things described in the post.
TAKEAWAY: Disagreements happen, but they can still be civil when there are rules and restrictions that are applied evenly to everyone – life in a community with a condo/homeowners association.
The post on Friday 9/5/2025 was about 3 DEI approaches employers must reconsider to avoid federal ire. On July 29, the Department of Justice (via the Office of the Attorney General) issued a lengthy memo (linked in the post) to federal agencies providing “guidance” on what may constitute unlawful discrimination by recipients of federal financial assistance. There is no force of law behind the guidance, but it provides a clear window into the enforcement strategy of the federal government when it comes to evaluating DEI programs for unlawful discrimination.
On its face, the guidance applies only to recipients of federal financial assistance. But think deeper – the principles in the guidance are likely to be applied by the EEOC to all employers under Title VII. See also our post on Tues. 8/19/2025.
While the guidance goes beyond DEI in employment (covering the other areas noted in the post), the post focuses only on employment issues and only on three of the more salient issues addressed in the DOJ memo.
1. Preferential treatment – ok, you already know that employers cannot provide preferences based on race, sex or other protected characteristics when making employment decisions, such as hiring and promoting. So no quotas, set asides or “plus” factors. There is no legal “diversity” exception to unlawful discrimination. And look closely at “diverse slate requirements” – the post has more details on that – and the processes leading up to the ultimate employment decisions. Employers should keep this in mind.
2. Use of “proxies” – The DOJ memo focuses heavily on the use of proxies. Unlawful proxies are defined as neutral criteria that function as substitutes for explicit consideration of race, sex or another protected characteristic. The memo provides the bases on which such proxies may be unlawful; see the post. Titles don’t matter; employers must evaluate their DEI programs or practices now. The post contains an example of how proxies can or cannot be used. What should employers focus on for recruitment? Again see the post. It’s not just semantics.
3. Segregation – the DOJ memo says that segregation occurs where a program, activity or resource “separates or restricts access based on race, sex, or other protected characteristics,” even if the stated goal is to increase inclusion or address historical disparities. How does the EEOC come into this? See the post. And when it comes to employee resource groups (ERGs), when HR professionals come up against it, three general principles apply. They are detailed in the post.
And keep in mind that while the DOJ memo calls out segregation as generally impermissible, it also contains something that might seem internally inconsistent – see the post. The EEOC takes the same position – a link to that is also in the post.
But when it comes to access to bathrooms, the position of the federal government differs from the enforcement position of some state and local agencies. Employers should be careful in this area.
TAKEAWAY: Employers are advised to review the memo and discuss it with their employment lawyer – and look inward to see what needs to change so as not to be int eh crosshairs.
Finally, in the post yesterday 9/6/2025, we learned that worker with torn ligament can bring ADA suit against Walmart (and now we’ve come almost full circle). Employers must know the law. The short opinion by a federal district court judge offers a few lessons for employers in how to approach ADA requests, so pay attention.
To add to its legal woes, Walmart cannot shake a worker’s discrimination, retaliation and failure-to-accommodate claims under the ADA, federal district court judge ruled Aug. 13. The worker in Peterson v. Walmart Associates, Inc., allegedly developed a torn ligament in one foot and a limp due to a physically demanding schedule that required about 15,000 steps of walking per day. She requested FMLA and asked for short, hourly stretch breaks, per a doctor’s recommendation, but was denied both and fired the next day. Walmart filed for summary judgment; its argument is in the post. The judge rejected Walmart’s arguments, finding “it’s too soon to say” how lasting her disability will be. There are lessons for employers here as to how to approach ADA requests.
For example, the judge pointed out that, with little information, it is not up to Walmart to determine the nature of the worker’s disability. Walmart supported its argument with a prior appellate court opinion (described in the post), but the judge here said that Walmart has not proven what was required under that other opinion (see the post).
Walmart also objected to the worker’s “threadbare” and “formulaic” case, but the judge said Walmart was only entitled to what is quoted in the post. More would be available through discovery as the case progressed.
Employers can legally ask workers for documentation when they disclose a disability and request accommodation, but they must engage in an interactive process (described in the post).
Walmart’s statement to the press is in the post.
TAKEAWAY: The ADA places a legal burden on employers to reasonably accommodate employees who so request; know what is required