Brad Cave

by Brad Cave

Can an employer’s diversity, equity, and inclusion (DEI) program create liability for the discriminatory harassment of white employees? The U.S. 10th Circuit Court of Appeals (whose rulings apply to employers in Wyoming, Colorado, New Mexico, and Utah) recently warned that the training required by a Colorado state agency included some content that could constitute unwelcome race-based harassment. While the court ultimately rejected the employee’s harassment claim, the opinion serves as a good reminder that negative race-based messaging may be illegal no matter which race is the target.

White employee gets the blues over DEI training

Joshua Young worked for the Colorado Department of Corrections (CDOC). Department policy required all employees to complete mandatory DEI training, which included several online modules and incorporated a glossary of terms explaining various DEI themes and several additional videos and books about race.

Young objected to many of the messages in the training. His lawsuit alleged the training included “sweeping negative generalizations” about white people and painted the United States as a racist country. According to him, the training glossary said all white people are racist, and white people created the concept of race to justify the oppression of people of color. The glossary also explained that white people are triggered by feelings of guilt and fear when confronted with racial inequality and injustice, which amounted to “white fragility.” Read more >>

Dana Dobbins

By Dana Dobbins

Artificial intelligence (AI) is becoming increasingly prevalent in workplaces, providing new opportunities as well as new challenges for employers and employees. While AI has the potential to improve efficiency and productivity, its use also raises important questions around issues like privacy, discrimination, and job displacement. Employers who choose to implement AI should consider including a provision in their employee handbook, or a separate policy, specifically addressing its use. Such a provision or policy can help mitigate risks, provide clarity for employees, and demonstrate an employer’s commitment to using AI ethically and responsibly.

Employers who incorporate AI into the workforce should develop policies governing appropriate use of generative AI, regularly update those policies as laws and technology continue to change, and enforce their policies. Employers should consider the following provisions in their AI use policies:

Specify Which Employees May Use AI and Require Prior Approval

For any number of reasons, employers may be willing to let some teams or groups, but not others, use generative AI technology, especially while the employer is still examining how AI can be incorporated in their company or industry. An AI policy should specify which departments, if any, are permitted to use AI. Read more >>

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

The short answer is: Maybe. You must reasonably accommodate em­ployees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship.

For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden. In June 2023, however, the U.S. Supreme Court “clarified” that standard. In Groff v. DeJoy, the Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employ­er’s] particular business.” The Equal Employment Opportunity Com­mission (EEOC) has provided similar guidance, stating that employers shouldn’t try to suppress all religious expression in the workplace. Read more >>

Dana Dobbins

By Dana Dobbins

Question: To be compliant with the PUMP Act, it states there must be a water source. Must this water source be in the same room as the designated space, or is nearby acceptable? It is difficult to identify a space that can be locked, quiet, and private that is not a bathroom but also has a sink.

Answer: The federal Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was signed into law on December 29, 2022. The PUMP Act requires em-ployers to provide covered employees with “a place, other than a bathroom, that is shield-ed from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. 218d(a)(2). This law does not require that a water source be within the designated lactation space. Read more >>

Steven Gutierrez

by Steven Gutierrez

The fact your company is setting up a new business line doesn’t mean you must revisit the company’s policies and procedures, unless the addition of the new line would increase your employee count so much that the company would be obligated to offer new benefits or comply with additional mandates. Read more >>