Articles by Our Attorneys

In May 2024, U.S. Equal Employment Opportunity Commission (EEOC) enforcement made headlines, with numerous states challenging the recently updated EEOC harassment guidance and the EEOC cracking down on EEO-1 delinquent filings, while Starbucks’ labor woes continued.  Read about the details below.

18 State Attorneys General Assert EEOC Transgender Harassment Guidance Oversteps

Eighteen Republican state attorneys general, led by Tennessee, have filed a lawsuit against the EEOC, urging a federal judge to revoke recently finalized workplace harassment guidelines related to gender identity. The guidelines, issued in October 2023 and finalized in April, mandate employers to use employees’ preferred pronouns, allow transgender employees to use restrooms matching their gender identity, and prohibit dress codes based on biological sex. The states argue that the EEOC overreached its authority by issuing these protections, which they claim extend beyond the scope of the U.S. Supreme Court’s Bostock v. Clayton County decision, which held that terminating an employee based upon transgender status constitutes unlawful discrimination based upon sex under Title VII of the Civil Rights Act.  They further argue that the mandates contradict state laws and impose significant costs and irreparable harm. They contend that the EEOC lacks the authority to amend Title VII to include such gender identity accommodations, a task they believe should be reserved for Congress and the states. Tennessee Attorney General Jonathan Skrmetti described the EEOC’s actions as a misuse of federal power that undermines constitutional separation of powers and local governance, particularly regarding gender ideology and privacy concerns in schools and workplaces.

The case is State of Tennessee et al. v. Equal Employment Opportunity Commission et al., case number 3:24-cv-00224, in the U.S. District Court for the Eastern District of Tennessee.

EEOC Files Lawsuits Over EEO-1 Reporting Noncompliance

The EEOC initiated a series of lawsuits this month against companies in hospitality, transportation, food service, and construction sectors for failing to report required demographic data about their employees. Federal law mandates that businesses with 100 or more employees must annually submit workforce data to the EEOC, detailing job categories by sex, race, and ethnicity. This data aids in enforcement, research, and employer self-assessment.

The EEOC’s actions target firms in Alabama, Arizona, Florida, Georgia, Missouri, New Jersey, New York, North Carolina, Ohio, Texas, and Wisconsin, alleging noncompliance with EEO-1 report submissions for 2021 and 2022. Notable defendants include Transdev Services Inc., an Ohio-based auto parts dealer, and Primary Aim LLC, a Wendy’s franchisee. Despite notices, these companies failed to submit the required reports. The EEOC seeks court orders for compliance with past and future reporting obligations, with the 2023 EEO-1 report deadline looming on June 4.

The filings may signal a renewed effort by the EEOC to require employers to turn over pay information, and serves as a reminder to employers that EEO-1 reporting is more than a formality – the failure to comply can lead to legal consequences.

NLRB Judge Rules Starbucks Violated Labor Law by Banning Union Shirts While Allowing Other Logos

A National Labor Relations Board judge recently ruled that Starbucks violated federal labor law by preventing workers at its Staten Island, New York store from wearing union shirts, while allowing other non-standard attire. Judge Michael Silverstein noted that Starbucks’ claim of a strict dress code was undermined by its acceptance of shirts promoting various causes, such as Pride and Black Lives Matter, and themed attire for holidays and events.

The ruling followed a complaint from Workers United, which represented the employees after their union vote in September 2022. The dispute intensified when store manager Michelle DeAngelo enforced the dress code against union shirts and stickers about store closures, leading to unfair labor practice allegations.

The judge determined that the restriction on union shirts and stickers violated the National Labor Relations Act, as these were union activities protected by law. However, he dismissed one allegation due to insufficient evidence that Starbucks enforced its dress code more strictly for union apparel compared to other non-uniform clothing. 

The case is Starbucks Corp. and Workers United, case number 29-CA-305960, before the National Labor Relations Board Division of Judges.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

April 2024 brought major pronouncements from the federal government that will affect employment nationwide, including the FTC’s controversial ban on non-compete agreements, and the EEOC issuing guidance on workplace harassment and a final rule implementing the Pregnant Workers Fairness Act. The details are below. 

FTC Issues Ban for Non-Compete Agreements Nationwide, but Challenges Loom

The Federal Trade Commission (FTC) issued a Final Rule this week to ban non-compete agreements, marking a significant shift in employment law nationwide.  The Final Rule is not an absolute ban, however the exceptions are narrow.  Some key takeaways from the Final Rule are:

• The Ban does away with all new post-employment non-compete agreements between employers and employees, regardless of industry or type of worker.
• The Ban allows existing post-employment non-compete agreements to remain in effect only for senior executives. A “senior executive” is defined as an employee “earning more than $151,164 annually who [is] in a policy-making position.”
• The Final Rule calls for notice to employees that previously executed post-employment non-compete agreements are no longer enforceable.
• The Ban creates an exception for the sale of a business, regardless of the ownership percentage.
• The Ban does not apply to franchisee/franchisor contracts (though the Ban does apply to employees working for a franchisee or franchisor).

The FTC rule isn’t set to go into effect until 120 days from the day it is published in the Federal Register, so likely not before September, 2024.  Moreover, less than 24 hours after the FTC issued the final rule, the US Chamber of Commerce filed a lawsuit against the agency in federal court in the Eastern District of Texas.  As such, the final impact of the Rule is yet to be determined.

Ultimately, employers may need to reassess their employment practices and consider alternative ways to protect their interests without resorting to non-compete agreements.  Meanwhile, employees may find themselves with greater freedom in their career paths. As this issue continues to evolve, both employers and employees should stay informed about their rights and responsibilities under the new regulatory landscape.

EEOC Issues Long-Awaited Updated Enforcement Guidance on Workplace Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) has released its long-awaited final version of enforcement guidance on workplace harassment. This updated advice reflects contemporary developments, including the landmark Bostock decision by the U.S. Supreme Court and the increasing prevalence of remote work.

After a seven-year effort to modernize its harassment guidelines, the EEOC has crafted a comprehensive blueprint to combat workplace misconduct. This guidance replaces publications from the 1980s and 1990s, addressing topics such as the #MeToo movement and the Bostock v. Clayton County, Georgia decision, which affirmed protections against discrimination based on sexual orientation and gender identity under Title VII of the Civil Rights Act.

The document also addresses emerging issues like remote work, teleconferencing, and social media, recognizing that harassment can occur both in-person and online. Key provisions emphasize protections against intrusive questions about sexual orientation, gender identity, or intimate body parts, as well as the importance of providing access to “gender-affirming” workplace facilities.

While the guidance received support from Democratic commissioners, it faced opposition from Republican-appointed members who criticized its stance on gender identity and restroom policies. Despite dissent, the EEOC moved forward, drawing on extensive public feedback to refine the document.

The final guidance expands on the initial draft, providing detailed examples of harassment scenarios, particularly in virtual work environments. It highlights the persistence of harassment in remote settings, debunking the notion that telework would reduce misconduct.  Moreover, the document delves into intersectional and intraclass harassment, recognizing the complexities of mistreatment based on multiple protected characteristics or within shared identity groups. 

EEOC Issues Final Rule Implementing Pregnant Workers Fairness Act

The U.S. Equal Employment Opportunity Commission (EEOC) has unveiled its final rule implementing the Pregnant Workers Fairness Act (PWFA), marking a significant milestone in workplace protections for pregnant individuals and those with related medical conditions. The PWFA mandates that employers provide reasonable accommodations to pregnant workers, ensuring their safety and well-being without fear of job repercussions.

The EEOC’s final regulations, spanning over 400 pages, largely endorse a pro-worker interpretation of the law, aligning with its mandate to offer accommodations unless it poses an undue burden on businesses. The regulations, following a period of public comment, encompass a broad spectrum of conditions related to pregnancy and childbirth, including lactation, endometriosis, infertility, miscarriages, and notably, abortion.

While receiving bipartisan support upon enactment, certain aspects of the EEOC’s interpretation have sparked debate. Commissioner Andrea Lucas dissented due to concerns over the expansive definition of covered conditions, including abortion. Senator Bill Cassidy expressed opposition, deeming the inclusion of abortion illegal and divergent from congressional intent.

Conversely, Commissioner Kalpana Kotagal hailed the regulations as upholding hard-won rights, emphasizing the importance of not forcing pregnant workers to choose between health and employment. Dina Bakst of A Better Balance praised the regulations as robust, ensuring access to accommodations crucial for safeguarding the health and employment of millions, particularly those in physically demanding roles.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.