Jeffrey Burke

Our August 2025 Employment Law Update highlights three major developments that could reshape employer liability and compliance obligations. From the DOJ’s crackdown on certain DEI practices, to the ALI’s controversial new sexual assault liability rule, to the Sixth Circuit’s break from EEOC harassment guidance, these shifts signal important changes every employer should be watching. 

DOJ Issues Strict Guidance Targeting DEI Practices, Raising Compliance Risks for Employers 

The U.S. Department of Justice (DOJ) has issued its most detailed guidance yet on diversity, equity and inclusion (DEI) programs, outlining practices it considers unlawful and signaling heightened scrutiny for employers and institutions that receive federal funding. Although the guidance is limited to these organizations, its reach could extend to the private sector through future EEOC enforcement. Released in a recent memo from Attorney General Pam Bondi, the guidance identifies potentially discriminatory practices and offers “nonbinding suggestions” for compliance.   

A central focus of the memo is “proxy” discrimination – the use of seemingly neutral criteria, such as cultural competence or geographic targeting, that in practice serve as stand-ins for protected traits like race or sex. The DOJ cautioned that such methods, along with prioritizing candidates from underrepresented groups, could amount to unlawful bias. 

The guidance also flagged “diverse slate” requirements, where employers commit to including candidates from specific backgrounds in hiring pools. The DOJ said these practices create unequal treatment and violate federal law, putting employers on notice that such initiatives may invite enforcement actions. 

Other key areas include DEI-related training sessions, which the DOJ warned against if they stereotype or segregate employees, and policies governing “intimate spaces” or athletic competitions, where the agency emphasized protections for sex-based privacy and opportunities. The DOJ repeatedly cited the Supreme Court’s 2023 Students for Fair Admissions decision, reiterating the Trump Administration’s application of that case into the world employment law.  

Employers may want to reassess their DEI policies, particularly those involving candidate selection and training, given the DOJ’s now-stricter interpretation of anti-discrimination laws. 

ALI’s New Sexual Assault Liability Rule Could Greatly Expand Employer Risk 

The American Law Institute (ALI) has approved a new and controversial provision in the Restatement of the Law Third, Torts that could dramatically expand employer liability for sexual assaults committed by employees. Known as the “Special Rule on Vicarious Liability for Sexual Assault,” the provision allows employers to be held strictly liable when four conditions are met: the employee’s role creates a foreseeable risk of assault; the victim is “particularly vulnerable”; the employer grants the employee power or authority over that individual; and the assault occurs during assigned work or within the employer’s control. 

This rule marks a sharp departure from the traditional doctrine, which has long treated sexual assault as categorically outside the scope of employment. Historically, employers have only been vicariously liable when misconduct somehow advanced their business interests – such as a company driver speeding to complete a job. By contrast, the ALI’s new approach attaches liability based on power dynamics and job conditions, not employer negligence or intent. 

Industries such as healthcare, education, hospitality, and entertainment could face significant new exposure, given the frequency of employee interaction with vulnerable populations. The rule could also eliminate traditional defenses, allowing plaintiffs to succeed even when employers complied with existing standards of care. 

It remains uncertain which courts will formally adopt this rule. Notably, Pennsylvania courts have declined to adopt the Third Restatement in other contexts such as products liability law, suggesting the possibility that the ALI Rule will not be adopted in this jurisdiction. 

However, even without formal adoption of the rule, employers can take proactive steps to mitigate risk based upon the metrics emphasized by the ALI rule. Helpful measures can include strengthening background checks, reinforcing workplace policies, enhancing monitoring and documentation, reviewing insurance coverage, and ensuring contracts clearly allocate liability. If courts embrace this rule, companies must be prepared for a legal landscape where strict liability replaces negligence as the governing standard in sexual assault cases. 

Sixth Circuit Breaks From EEOC, Limits Employer Liability for Customer Harassment 

The Sixth Circuit has adopted a notably strict approach to employer liability for harassment by customers, ruling that companies can only be held responsible if the companies intended for the customer harassment to occur. This decision in Bivens v. Zep Inc. diverges from decades of U.S. Equal Employment Opportunity Commission (EEOC) guidance and rulings from multiple other federal appeals courts. 

The case arose after Dorothy Bivens, a sales representative for Zep Inc., alleged she was locked in an office and propositioned by a client during a site visit. Although Zep reassigned the client after Bivens reported the incident, she was laid off soon after and claimed the termination was retaliatory and racially motivated. A federal judge granted summary judgment for Zep, and the Sixth Circuit affirmed. 

In rejecting the EEOC’s negligence-based framework – which holds employers liable if they knew or should have known about harassment and failed to act – the panel emphasized that courts are not bound by EEOC interpretations. Instead, it concluded liability exists only if the employer wanted or was substantially certain that harassment would occur. 

This stance on Title VII currently isolates the Sixth Circuit from other jurisdictions.  However, the decision – by judges who were all appointed by President Trump – may signal a narrowing of employer liability that could expand to other jurisdictions with more conservative jurists.  

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 businesses on commercial contract matters. 

In July 2025, federal actions on civil rights and labor policy made headlines, as Columbia University reached a record $21 million settlement over antisemitism claims, a federal court reversed job protections for a transgender teacher under Florida’s pronoun law, and the Department of Labor paused enforcement of an Obama-era rule expanding wage protections for home care workers. Get the details in this month’s employment law update. 

Columbia University Reaches Historic $21 Million Antisemitism Settlement with EEOC 

Columbia University has agreed to pay $21 million to resolve claims of antisemitic harassment against Jewish employees, marking the largest such settlement ever reached by the U.S. Equal Employment Opportunity Commission (“EEOC”), the agency announced. The deal addresses both individual complaints and a rare “commissioner’s charge” filed by acting EEOC Chair Andrea Lucas after the October 7, 2023, Hamas attacks on Israel, which reportedly led to increased harassment on campus. 

This EEOC agreement is part of a broader $221 million settlement Columbia reached with the Trump administration to address failures in protecting Jewish staff and students. While the university admitted no wrongdoing, it agreed to implement policy reforms aimed at combating antisemitism and reaffirmed its commitment to academic independence. 

Lucas emphasized that universities, as workplaces, must uphold civil rights laws and not allow antisemitism under the guise of free speech. She praised Columbia for establishing a substantial claims fund for affected employees. 

The EEOC called the resolution “historic,” noting it is the largest settlement for any religious discrimination case in nearly two decades. The case reflects a growing federal focus on antisemitism, reinforced by recent executive actions prioritizing investigations into religious harassment in educational institutions. 

11th Circuit Reverses Injunction Protecting Trans Teacher’s Job in Pronoun Case 

A federal appeals court has overturned an injunction that had allowed Florida high school teacher Katie Wood to keep her job while she challenges a state law banning public school employees from using pronouns or titles that don’t align with their biological sex. The Eleventh Circuit ruled 2–1 that Wood was unlikely to succeed on her First Amendment claim, finding that her use of “she/her” pronouns and the honorific “Ms.” in the classroom constituted government speech. 

The majority, both judges appointed by former President Trump, concluded that public school teachers speaking to students are acting in an official capacity. Under Supreme Court precedent, such speech isn’t protected under the First Amendment. Judge Kevin Newsom wrote that the ruling applies only to classroom interactions during instruction. 

In a strong dissent, Judge Adalberto Jordan, an Obama appointee, warned the majority’s logic could let the state mandate how teachers identify themselves, even forcing female teachers to use “Mrs.” or generic titles like “Teacher Smith.” He argued that personal pronouns aren’t inherently government speech and cited Supreme Court precedent supporting limited personal expression by public employees. 

The decision reflects growing legal tensions over free speech, gender identity, and state regulation in public education. 

The case is Wood v. Florida Department of Education et al., case number 24-11239, in the U.S. Court of Appeals for the Eleventh Circuit. 

DOL Halts Enforcement of Obama-Era Home Care Worker Rule 

The U.S. Department of Labor (“DOL”) announced it will stop enforcing a 2013 rule that expanded wage protections for certain home care workers under the Fair Labor Standards Act (“FLSA”), as it begins the process of rescinding the regulation. The Obama-era rule limited the ability of third-party agencies to claim exemptions from paying minimum wage and overtime to domestic workers providing companionship services. 

Under the original 1974 FLSA amendment, live-in domestic workers were exempt from overtime pay, and companionship workers were exempt from both minimum wage and overtime. The 2013 rule tightened those exemptions. 

In a field assistance bulletin, the DOL’s Wage and Hour Division said the pause is intended to ensure clarity during the ongoing rulemaking process. A proposal to roll back the rule was issued July 2, and public comment will guide the department’s final decision. 

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 businesses on commercial contract matters. 

In May, a local school district gets hit with an Equal Pay Act jury verdict, and federal judges strike down actions from the previous and current presidential administrations as overreaching.  Get the details in this month’s update.

Jury Awards $165K to Female Teachers in Equal Pay Act Case Against Central Bucks School District

A Pennsylvania jury awarded $165,000 in damages to two female teachers, Rebecca Cartee-Haring and Dawn Marinello, who successfully claimed that the Central Bucks School District paid them less than comparable male teachers, violating the Equal Pay Act. The verdict, reached after a second trial, followed a mistrial in 2023 and the decertification of the case as a collective action. Representing the teachers, attorney Edward Mazurek rejected the district’s portrayal of the outcome as a compromise, asserting the jury clearly found long-standing gender-based pay discrimination. The teachers originally sued in 2020, alleging the district inconsistently calculated years of experience based on gender. While Cartee-Haring’s other discrimination claims under Title VII, the ADEA, and the ADA were dismissed, her Equal Pay Act claims proceeded. The court required the plaintiffs to compare their pay to specific male teachers rather than a general group, which the district argued differed in responsibilities and qualifications.  The case is Cartee-Haring v. Central Bucks School District, case number 2:20-cv-01995, in the U.S. District Court for the Eastern District of Pennsylvania.

Federal Judge Strikes Down EEOC Abortion Accommodation Mandate Under Pregnant Workers Fairness Act

A Louisiana federal judge ruled that the U.S. Equal Employment Opportunity Commission (EEOC) overstepped its authority in implementing parts of the Pregnant Workers Fairness Act (PWFA) by requiring employers to accommodate elective abortions. In a 40-page decision, Judge David C. Joseph granted summary judgment in favor of Mississippi, Louisiana, and four Catholic organizations, vacating portions of the PWFA final rule that included abortion under “pregnancy, childbirth, or related medical conditions.” He ruled that the EEOC unlawfully assumed congressional power and violated federalism principles by mandating accommodations not explicitly included in the statute. Judge Joseph emphasized that Congress passed the PWFA shortly after the Supreme Court’s Dobbs decision, suggesting lawmakers intentionally omitted abortion-related accommodations. He rejected the EEOC’s argument that the PWFA mirrors Title VII’s protections for abortion. The EEOC’s next steps remain uncertain, as the case was remanded for further agency action. The ruling also follows a similar North Dakota case limiting EEOC enforcement against religious organizations.

Trump Anti-DEI Executive Order targeting Law Firm Struck Down by Federal Judge

A D.C. federal judge struck down former President Donald Trump’s executive order targeting WilmerHale, calling it unconstitutional and retaliatory. Executive Order 14250, issued on March 27, 2025, accused WilmerHale of engaging in discriminatory DEI policies, including the use of race-based targets, which the administration claimed violated civil rights laws. U.S. District Judge Richard J. Leon granted the law firm summary judgment on most claims, ruling the order violated the First Amendment by punishing WilmerHale for representing clients disfavored by Trump, including former inspectors general, Democratic candidates, and those challenging the 2020 election results. The judge emphasized that the order imposed severe sanctions—including terminating federal contracts and blocking firm employees from entering government buildings—intended to cripple the firm’s business, which derives over 30% of its revenue from clients with federal contracts. He also found violations of due process, separation of powers, and the Sixth Amendment right to counsel. Judge Leon dismissed some claims, such as equal protection and spending clause arguments, but still granted declaratory and permanent injunctive relief. WilmerHale praised the ruling as a defense of constitutional rights. This decision follows similar victories for law firms Jenner & Block and Perkins Coie, who were also targeted by Trump. Other BigLaw firms have either filed suits or reached private deals with the Trump administration, prompting scrutiny from lawmakers.

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 businesses on commercial contract matters.

April 2025 brought fundamental shifts in employment law brought about by the new presidential administration, and a notable Pennsylvania federal court decision in the area of disability protections relating to medical marijuana. See the latest developments below.

Trump Executive Order to End Use of Disparate Impact in Federal Discrimination Cases

President Donald Trump signed an executive order dismantling the use of “disparate impact” as a basis for federal anti-discrimination enforcement. Disparate impact — a long-standing legal theory under civil rights laws like the Civil Rights Act and Americans with Disabilities Act — allows discrimination claims without proof of intent if a policy disproportionately harms protected groups. Trump’s order rejects this approach, calling it “inconsistent with the Constitution” and harmful to merit-based governance.

The order revokes prior federal policies endorsing disparate impact liability and directs agencies to deprioritize enforcement actions based on it. It also tasks the attorney general with repealing or amending Title VI regulations referencing the theory and instructs agencies like the DOJ, EEOC, HUD, and CFPB to review and potentially roll back existing cases relying on it. Critics warn the order marks a significant rollback of civil rights enforcement, while supporters say it restores focus on individual equality and merit.

Trump DOL Signals Intent to Rescind Biden-Era Independent Contractor Rule

The U.S. Department of Labor (DOL) has indicated in recent court filings that it intends to reconsider and potentially rescind the 2024 independent contractor rule issued during the Biden administration. This move reflects a broader shift in policy following the 2024 election of President Donald Trump, whose administration appears poised to revive the more business-friendly 2021 rule implemented during his first term.

The 2024 rule, which took effect in March, reinstated a six-factor “economic realities” test to determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The rule replaced the Trump-era version, which had streamlined classification criteria. Biden’s rule has faced five legal challenges, and while courts have so far upheld it or dismissed suits on procedural grounds, the DOL has begun asking courts to pause ongoing litigation, signaling a regulatory reversal.

In court statements, the DOL emphasized that the rule is not binding law but rather interpretive guidance for enforcement. It also cited the U.S. Supreme Court’s Loper Bright decision, which limits judicial deference to agency rules, further weakening the 2024 rule’s authority. However, for now, the 2024 rule remains in effect, creating legal uncertainty for workers and employers alike looking ahead.

Pennsylvania Medical Marijuana User Can pursue Disability Accommodation claim Under State Discrimination law

A federal judge in Pennsylvania has revived a disability bias claim brought by medical marijuana user and job applicant against a Cleveland-based construction firm. U.S. District Judge Robert J. Colville had previously dismissed the claim under the Pennsylvania Human Relations Act (PHRA), ruling that employers are not required to accommodate marijuana use. However, upon reconsideration, the judge found that the applicant’s allegation—that the company failed to explore alternative accommodations unrelated to cannabis use—warranted further examination.

The applicant had been offered a project engineer role in 2023, but the offer was rescinded after he tested positive for THC and disclosed his certified medical marijuana use for anxiety, depression, and ADHD. While his claim under Pennsylvania’s Medical Marijuana Act was allowed to proceed, his PHRA claim was initially dismissed. The applicant filed a motion seeking an appeal, which the judge denied, but used the opportunity to reverse his prior ruling.

Judge Colville emphasized that employers must still engage in an interactive process to explore reasonable accommodations, even if medical marijuana use is not protected under PHRA. The case will now proceed on these grounds.

The case is Davis v. The Albert M. Higley Co. LLC, case number 2:23-cv-01975, in the U.S. District Court for the Western District of Pennsylvania.

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 businesses on commercial contract matters.