Seyfarth recently hosted a webinar entitled ‘Managing Cross-Border Sexual Harassment Investigations in Australia and Asia’, addressing the practical considerations that employers should be aware of when investigating allegations of sexual harassment in the workplace. This webinar highlighted relevant laws and examples from Australia, Hong Kong, Singapore, and the People’s Republic of China (PRC). Given the strong interest in this topic, we bring you a series of three blogs that highlight 10 key considerations.

Managing cross-border sexual harassment investigations in the Asia Pacific region presents unique challenges due to varying legal frameworks, cultural norms, and procedural requirements. This blog series aims to provide an outline to help navigate these complexities, focusing on the key differences in investigation procedures across the Asia Pacific region. By understanding these differences, organisations can ensure that their investigations are conducted fairly, efficiently, and in compliance with local laws.

Part one of this series covers our first three considerations – the definition of ‘workplace’ harassment, privilege, and investigation teams.

#1 – When is ‘workplace’ sexual harassment unlawful in each country?

This question affects when sexual harassment is a matter for employers, and can validly be the subject of an investigation. Remote work, social events, and other non-traditional settings can all raise complexities.

In Australia, sexual harassment is unlawful (and employer liability can arise) in a variety of circumstances where the harasser or victim is a worker, or where there is a relevant connection to work. This extends outside the boundary of a physical ‘workplace’ or ordinary working hours.

In the PRC, ‘workplace’ usually encompasses social activities closely related to work and company organised events, for example, a work Christmas party.

In Hong Kong and Singapore, ‘out of hours’ events may be considered part of the ‘workplace’ if there is a sufficient connection between the workplace or employment and the out-of-hours conduct engaged in by the employee. In Hong Kong, workplace sexual harassment can occur not just between employees but between any ‘workplace participant’, which includes contract workers, interns, and volunteers as well.

#2 – Establishing the scope of sexual harassment investigations

Being clear about the scope of a workplace investigation will help define the specific issues to be investigated, and what questions the investigator will (or won’t) answer. For an investigation to be thorough and effective, the scope must be clearly defined to ensure that it addresses all the relevant issues.

In Australia, it can assist to ensure the scope is recorded in writing, including what allegations are being investigated and whether the investigation will be limited to fact-finding.

In Hong Kong, the scope of the investigation is quite often limited to fact-finding, with advice on what action to take subsequent to the investigation (including any disciplinary action) being carried out by separate lawyers within the same firm (with information barriers put in place) or a different firm, so as to maintain the independence of the investigation. The position is similar in Singapore, but with a little more flexibility.

In the PRC, investigators play a more active role than other jurisdictions in deciding the scope of an investigation, as well as providing recommendations and participating in disciplinary proceedings.

#3 – How is privileged information protected during investigations?

Legal privilege varies significantly across jurisdictions. This affects the extent to which confidential communications and documents can be protected from requests or orders for disclosure.

Legal privilege in Australia can apply to confidential communications where the dominant purpose was for litigation or provision of legal advice. It is possible that investigation records and the final report can be protected by legal privilege where they were created for a privileged purpose. In Australia, a common cause of dispute is whether privilege has been waived by later disclosure or use of documents for other purposes or if promises have been made about what would be disclosed.

In Hong Kong and Singapore, where investigations are conducted on a pure fact-finding basis (i.e., no legal advice is provided) and litigation is not reasonably in contemplation at the time of the investigation, it can be more challenging to assert legal privilege over the investigation process and report. If a client wants an investigation to be conducted under privilege, this will need to be carefully considered when establishing the scope of the investigation and steps put in place to achieve the protection of privilege.

The PRC does not recognise legal privilege like common law jurisdictions do. Lawyers in the PRC have an obligation to maintain confidentiality and have the right to refuse disclosure of certain documents or information in order to protect clients’ trade secrets and personal data.

In part two of our series, we will look at who forms part of an investigation team, how location affects which laws apply to an investigation, and notification requirements.

By: Lilah Wylde and Alison Silveira

On April 23, 2025, the U.S. District Court for the Northern District of California issued a significant order in House v. NCAA and two related antitrust class actions (collectively known as In re College Athlete NIL Litigation), tentatively approving portions of the NCAA’s proposed settlement—but stopping short of granting final approval. At issue: the NCAA’s premature implementation of Division I roster limits before securing judicial sign-off.

The court’s rebuke offers a stark reminder of how judicial scrutiny of class settlements—particularly Rule 23(b)(2) injunctive relief classes—can derail even the most sweeping attempts at structural reform. It also raises fresh compliance concerns for athletic departments navigating evolving name, image, and likeness (NIL) rules and pending litigation.

The Settlement: A Groundbreaking, Conditional Step

The proposed House settlement includes over $2.7 billion in back pay to college athletes and prospective revenue-sharing provisions. In a move lauded by some as ushering in a new era of college athletics, the NCAA and Power Five conferences also proposed future policy changes—chief among them, the introduction of team-specific roster caps intended to control expenses and facilitate revenue-sharing models.

Critically, the settlement created two classes: a Damages Class entitled to monetary relief and an Injunctive Relief Class, consisting of current and future Division I athletes whose rights are to be impacted by systemic NCAA reforms.

Judicial Pushback on Roster Limits

Despite “tentatively” approving most aspects of the agreement, Judge Wilken withheld final approval due to concerns that the immediate implementation of roster limits would irreparably harm certain athletes in the Injunctive Relief Class.  The Court expressed concern that these athlete’s “roster spot will be or has been taken away as a result of the immediate implementation of the settlement agreement, yet they will be deemed to have released their injunctive and declaratory relief claims as part of the settlement agreement.” . That, the court held, “is not fair,” and violates the equity requirements of Rule 23(b)(2).

The NCAA’s defense—that some class members might ultimately benefit from increased scholarship access—fell flat. Judge Wilken distinguished prior precedents cited by the parties, noting that none involved injunctive relief settlements that affirmatively harmed a subset of the protected class.

The court gave the NCAA 14 days to work with a mediator or magistrate judge to propose modifications, suggesting potential fixes such as grandfathering impacted athletes or phasing in roster limits gradually by attrition.

The NCAA’s Response: Operationalizing House—Now on Hold

On April 21, 2025—just two days before Judge Wilkin paused final approval—the NCAA Division I Board of Directors issued a statement conditionally approving rule changes designed to implement the House settlement. These reforms track closely with the core provisions of the settlement agreement and were crafted to bring NCAA policy in line with a new legal and economic reality.

Key elements of the proposed rules include:

  • Permission for schools to provide up to $20.5 million per year in direct financial benefits to athletes, mirroring the settlement’s revenue-sharing model;
  • Authorization for schools to offer full scholarships to all athletes on a declared roster, eliminating longstanding sport-specific scholarship caps;
  • Elimination of over 150 NCAA rules that previously constrained athlete benefits;
  • Establishment of centralized platforms for monitoring and reporting NIL activity;
  • Creation of an NCAA enforcement unit focused on compliance with the new framework.

The Board emphasized that these changes are contingent on final judicial approval of the House settlement.

The bottom line: while the NCAA has moved swiftly to align its policies with the anticipated future of college athletics, it may have moved too fast. Until Judge Wilkin grants final approval, these proposed reforms—however sweeping—remain aspirational and legally unenforceable.

Key Takeaways for Athletic Departments

  1. Hold the Line on Roster Changes: Institutions should suspend all compliance activity related to House settlement terms—especially roster limits—until a revised agreement receives final approval.
  • Monitor Judicial Developments: If Judge Wilken finds the parties’ modifications inadequate, she could deny approval outright, reigniting litigation on the merits—including Sherman Act claims.  Alternatively, if the Court feels that the parties’ proposed fix with respect to the Court’s concerns on roster limits could adversely impact class members, it may require a new round of notice to class members which could delay approval of the proposed settlement for months.
  • Prepare for a New Revenue Model: The Court has given the parties a road map to how to fix the settlement in a way that would allow it to approve the settlement and not require a new round of notice to class members.  If the parties are able to follow that road map, the Court appears poised to approve the settlement.    Colleges should prepare for a world in which they are permitted to share revenue directly with athletes, and work with counsel to prepare legally sound revenue sharing contracts that avoid inadvertently triggering other legal challenges.
  • Expect More Compliance Complexity: Schools must now juggle evolving NIL regulations, Title IX obligations, and emerging employment law theories—all in an uncertain legal landscape.

Conclusion

The House settlement may be the most ambitious attempt to reshape college athletics in decades. Judge Wilken’s April 23, 2025 order is a reminder that structural reforms must not only promise equity, but actually deliver it. For universities, athletic departments, legal counsel, and compliance officers, the next few weeks will be critical as the NCAA and the plaintiffs attempt to salvage a deal that has already changed the game.

By: Annette Tyman, Rachel V. See, Andrew L. Scroggins, and Christopher J. DeGroff

Seyfarth Synopsis: On April 23, 2025, President Trump issued an Executive Order entitled “Restoring Equality of Opportunity and Meritocracy.” The Order declares a sweeping new federal policy: “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” The Order directs all federal agencies, including the EEOC and Department of Justice, to deprioritize any enforcement and litigation regarding disparate impact claims. It further directs agency heads across the federal government to assess all existing regulations, guidance, rules, or orders (including existing consent judgments) that impose disparate-impact liability, and detail steps for their amendment or repeal within 30 days. Beyond the immediate implications for employers facing government litigation or enforcement actions, the Order has significant ramifications in the selection and testing arena, including for AI developers and deployers, as it signals that the federal government under the current administration will not allocate investigation, enforcement, or litigation resources into disparate impact claims against employers using AI tools or other tests. This dramatic shift away from what had been an enforcement priority creates complex interactions with private rights of action under Federal law, state law protections, and local ordinances that continue to recognize disparate impact liability.

Disparate impact liability is a legal theory contending that practices that appear neutral on their face can still be considered discriminatory if they disproportionately and adversely affect members of protected classes. Disparate impact liability is part of existing civil rights laws not just in employment, but in housing, education, credit and lending, government contracting, and other areas. The theory was first established by the Supreme Court in 1971 in Griggs v. Duke Power, 401 U.S. 424 (1971), which held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”. In 1991, Congress amended Title VII to add Section 703(k), which codified how “an unlawful employment practice based on disparate impact” could be established.

The Order and its accompanying fact sheet stake out a different position that characterizes disparate impact theory as fundamentally at odds with constitutional principles. The fact sheet states that disparate impact theory “violates the Constitution’s guarantee of equal treatment for all by requiring race-oriented policies and practices to rebalance outcomes along racial lines” and that it “undermines civil-rights laws by mandating discrimination to achieve predetermined, race-oriented outcomes.” Section 1 of the Order further states, “Disparate-impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.”

This leaves employers in choppy waters. The Executive Order directs federal agencies to shift their enforcement priorities and resources away from disparate impact claims, revokes existing Presidential approvals of regulations, and sets in motion further agency rulemaking and guidance to cease the federal government’s actions supporting disparate impact liability. However, the Executive Order does not change Section 703(k), or any of the case law interpreting and applying disparate impact theories of liability over the past five and a half decades, so employers still must contend with disparate impact claims brought by the private plaintiffs’ bar.  

Via the April 23, 2025 Order, the administration has communicated its intent to move away from disparate-impact liability, which includes:

  • Revoking regulations and other guidance that support disparate-impact liability;
  • Deprioritizing enforcement based on disparate-impact liability, including the enforcement of previously entered consent decrees and other agreements;
  • Evaluating whether state laws that incorporate disparate-impact liability theories may be preempted by federal authority; and
  • Issuing guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Section 2 of the Order provides the fundamental policy of the administration as it unambiguously states, “it is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”

Section 3 of the Order revokes prior Presidential approvals of regulations applicable to programs and activities receiving federal financial assistance under Title VI, as enforced by the Department of Justice.

Section 4 of the Order directs federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” with explicit reference to Title VII employment discrimination provisions and Title VI regulations.

Sections 5, 6, and 7 of the Order together instruct federal agencies to identify and evaluate existing disparate impact frameworks across the federal government, including regulations, guidance, rules, or orders that impose disparate impact liability, then plan for their amendment or repeal.

Section 6 has particular relevance to employers, as it requires the Attorney General and EEOC Chair to assess “all pending investigations, civil suits, or positions taken in ongoing matters . . . that rely on a theory of disparate-impact liability,” And it requires all agencies to “evaluate existing consent judgments and permanent injunctions” premised on the theory. Once identified, agencies are to take “appropriate action” consistent with the Order’s policy. Given the broad language in the Order, “appropriate action” could include dismissing existing litigation in whole or in part, withdrawing amicus briefs, curtailing or ending pending investigations, modifying or halting conciliation agreements and consent decrees, and scaling back other enforcement activity.

The mandate to assess pending investigations and litigation extends to the Department of Housing and Urban Development, Consumer Financial Protection Bureau, Federal Trade Commission, and other agencies enforcing laws such as the Equal Credit Opportunity Act and Fair Housing Act.

Section 7 directs the Attorney General to determine whether federal authorities preempt state laws imposing disparate impact liability and to take “appropriate measures” in response to any identified “constitutional infirmities.”  Section 7 also instructs the Attorney General and EEOC Chair to jointly formulate guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Implications for Employers Using Selection Procedures, Including Artificial Intelligence

Section 1 of the Order asserts that disparate-impact liability has “hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.” This assertion has particular relevance for employers using selection procedures or other processes that use artificial intelligence in their hiring and employment processes. The EEOC’s previous technical assistance on AI systems, issued on May 18, 2023, which has subsequently been revoked, asserted that existing law covered AI systems that produced disparate outcomes.

The Order creates a notable shift in this enforcement landscape, because it makes clear that the federal government will no longer prioritize investigations or enforcement actions based solely on statistical disparities in hiring outcomes. For employers using algorithmic decision-making systems, whether or not these systems are being deployed to make or assist in employment decisions, this policy shift means that the federal government is unlikely to pursue investigations or litigation alleging that the use of algorithms, including AI, has resulted in unlawful discrimination.

However, this backing away from enforcement at the federal level does not does not relieve employers of their obligations. First, disparate impact liability was codified into law by Congress in 1991, and private litigants retain the right to bring disparate impact claims under Title VII regardless of the federal government’s own enforcement priorities. It remains to be seen if the private plaintiff’s bar will pick up this challenge. The EEOC has long touted that, at least as far as disparate impact in hiring is concerned, it is “uniquely positioned to combat systemic hiring discrimination” based on its access to employer applicant and hiring data.  Complex “systemic” discrimination cases present a challenge for private lawyers given the high costs of necessary experts and the inability to track down potential claimants.  Time will tell if private litigants will fill any void created by the EO.

Additionally, several states and local units of government have enacted their own fair employment laws that recognize disparate impact liability, and these laws currently remain unaffected by federal enforcement decisions. For example, disparate impact components are present in local laws like New York City’s Human Rights Law and a new proposed rule from New Jersey’s Division on Human Rights.  States like Colorado and Illinois have already passed new laws intended to address unlawful bias arising out of an employer’s use of AI for employment decisions, and many other state legislatures are considering new laws. Furthermore, multiple groups from industry and civil society have advanced standards and practices for evaluating AI systems that address potential disparate impacts on the basis of sex, race, and other protected characteristics. As noted above, however, this administration will be examining potential preemption of these laws and rules. 

The Shifting Compliance Landscape

The divergence between federal enforcement priorities and existing statutory provisions and case law, and state and local laws, creates significant compliance challenges for employers. Employers and service providers should not interpret the April 23 Order as eliminating all exposure to disparate impact liability claims. Rather, employers and service providers should understand the Order as reflecting a change in federal enforcement priorities and be mindful that it may not extend to state and local laws and enforcement, or private litigants pending additional action, including efforts to “preempt” state or local laws.

Employers using AI-based tools or other selection procedures should continue to closely monitor developments at the federal and state levels, as well as private litigation trends and evolving global action. Employers should also understand how these efforts interact within the broader legal landscape, including but not limited to the Administration’s positions regarding diversity, equity, and inclusion and “merit based” employment practices, in which these federal priority shifts are occurring.

Seyfarth Shaw will continue to monitor these developments and provide updates as they occur. For more information on how these changes may affect your workplace policies and compliance obligations, please contact any of the authors or your Seyfarth attorney.

Seyfarth Shaw LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from their professional advisers.

By: Tatiana Sterling, Ashley Casey, Marlin Duro-Martinez, and William Perkins

The Second Circuit Court of Appeals (the “Second Circuit”) recently decided Tudor v. Whitehall Central School District, which changes the landscape of reasonable accommodations, within the Circuit, under the Americans with Disabilities Act (“ADA”). The Second Circuit followed the trend set by the First, Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits in holding that an employee with a disability may qualify for a reasonable accommodation even if they can perform the essential functions of their job without an accommodation.

Background:

Angel Tudor (“Tudor”), a teacher who worked for Whitehall Central School District (“Whitehall”) for nearly 20 years, had a longstanding history of post-traumatic stress disorder (“PTSD”) following an incident of sexual harassment and assault by a supervisor at a prior employer. The PTSD caused severe psychiatric symptoms for which Tudor sought psychiatric help and was prescribed several medications.

Whitehall initially granted Tudor an accommodation to take 15 minute breaks, however, after an administration change, a new policy prohibited teachers from leaving campus during their prep periods. After the new policy was implemented, Tudor was reprimanded and told that the documentation on file was insufficient to support a reasonable accommodation.

Accordingly, Tudor filed suit in the Northern District of New York (“Northern District”) alleging that Whitehall’s refusal to guarantee her a fifteen-minute afternoon break violated the ADA. The Northern District granted summary judgment in favor of Whitehall, finding that Tudor’s ability to perform the essential functions of her job without an accommodation was fatal to her failure to accommodate claim. Tudor subsequently filed an appeal with the Second Circuit.

The Second Circuit’s Decision:

The Second Circuit has consistently held that in order to establish a failure to accommodate claim under the ADA, an employee must show that with a reasonable accommodation, they would be able to perform the essential functions of their job. In Tudor, the Second Circuit found that the Northern District erroneously interpreted the ADA to mean that an employee who can perform the essential functions of their job without an accommodation cannot sustain a failure to accommodate claim. This, the Court reasoned, is inconsistent with the plain text of the ADA.

The ADA defines a qualified individual as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.” The key language here is the phrase “with or without reasonable accommodation.” As such, the Second Circuit explained that barring undue hardship an employer must provide an employee with a reasonable accommodation even though such an accommodation is not required to perform the essential functions of the job.  

Key Takeaways for Employers:

This case broadens the scope of an employer’s duty when assessing appropriate accommodations for employees with disabilities. Before this decision, an employer in the Second Circuit was not required to offer a reasonable accommodation if the disabled employee was able to perform their duties without an accommodation. This case now requires reasonable accommodations notwithstanding the disabled employee’s ability to perform their job functions without the accommodation. This could lead to a potential influx of accommodation requests that will require careful consideration by employers.

Additionally, when changing company policies, employers should evaluate any consequences to reasonable accommodations that it has granted and/or is considering. 

Please reach out to the authors of this blog or your Seyfarth attorney contact with any questions about reasonable accommodations or requirements under the ADA.

Welcome to Decoding Appeals, where Seyfarth’s Appellate Team brings to in-house counsel our insights and expertise from the front lines of the appellate courts. Throughout this short video series, we break down the nuances of appellate advocacy, sharing tips and lessons we’ve learned to help companies’ in-house legal teams understand the complexities of the appeals process.

In this episode, Eddy Salcedo and Owen Wolfe emphasize the importance of involving appellate lawyers early in the trial process to protect appeal rights. The episode covers key topics like preserving arguments, understanding interlocutory appeal opportunities, and crafting compelling briefs that highlight the case’s significance. Tune in for strategic insights into structuring your appeal, from preservation at the outset to focusing the brief and preparing for oral argument.

Image of a shopping cart on top of a computer.

Seyfarth Synopsis: Are web-only businesses subject to Title III? A Minnesota federal court joins the controversy and says yes.

Courts around the country are split on the issue of whether a “place of public accommodation” subject to Title III of the Americans with Disabilities Act must have a physical location where it serves the public.  A federal trial court in Minnesota recently denied a web-only business’s motion to dismiss, ruling that web-only businesses are covered by Title III, siding with the courts that have concluded that no physical place is required.

Recognizing the disagreement among federal appellate and trial courts on this issue, as well as the fact that the Eighth Circuit Court of Appeals (within which the District of Minnesota sits) has not opined on the issue, the Court went to great lengths to justify its decision that a “public accommodation” does not have to be a physical place.

First, the Court sought to distinguish the Third, Sixth, and Ninth Circuit decisions finding that public accommodations are limited to “physical structures” by stating that those cases were about whether the ADA applied to the content of insurance policies, not websites. 

Second, the Court stated that those courts had “allowed the canon of noscitur a sociis to play too great a role in their analysis.”  This cannon of statutory construction states that a word is known by the company it keeps and is used to interpret ambiguous words.  The Court insisted that the application of this rule “ignores the maxim that a remedial statute should be read broadly” and runs counter to the “ADA’s intent, which Congress enacted ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.’” 

Third, the Court gave no weight to the dictionary definition of the word “place” in the phrase “place of public accommodation” because that definition, in the Court’s view, was “inconclusive.”

Fourth, the Court noted that Congress’ failure to amend the ADA to explicitly include websites should not be construed as Congress’s intention to exclude websites. To the contrary, the Court posited that the lack of legislative action could be interpreted as an understanding that no amendment is required to cover online-only businesses.

The bottom line is that the Court found the exclusion of online-only businesses from the ADA’s coverage inconsistent with the ADA’s mandate to ensure equal access for individuals with disabilities to businesses’ goods and services, noting that shopping via retail websites is not meaningfully different from shopping at physical stores. 

While we have yet to see other district courts in the Eighth Circuit weigh in on this issue, this decision may spark a trend of web accessibility lawsuits in Minnesota and the Eighth Circuit, as we have seen from plaintiff-friendly rulings in New York. 

Edited by: Minh N. Vu

By: Erin Chow, Lukas Huldi, and Michael Steinberg

Seyfarth Synopsis: In a dispute over workplace vaccination requirements, a federal district court in Oregon joined a growing trend in workplace vaccination litigation when it ruled that a plaintiff’s allegations of religious conflict with vaccination are sufficient to survive a motion to dismiss even when religious motives are coupled with secular concerns over vaccine safety.

Background & Holding

To get past a motion to dismiss and unlock the door to discovery, Plaintiffs asserting religious discrimination claims under federal or state law must allege facts suggesting that their religious beliefs or practices conflicted with a requirement of their employment.  But what beliefs count as “religious”?  The issue arises frequently in cases challenging termination for non-compliance with an employer’s COVID vaccine policy because employees’ claims of religious conflict are often interspersed with entirely secular concerns—such as fear of harm from the vaccine or philosophical opposition to mandates—that undermine the plaintiff’s claim that her objections were religiously motivated.  Many courts across the country have thus wrestled with the question of whether, and to what extent, an employee’s articulation of secular objections to vaccination alongside purported religious concerns may be fatal to surviving a Rule 12 motion.  In December 2024, the United States District Court for the District of Oregon entered the fray and concluded that a plaintiff may properly plead a sincere religious belief even when the plaintiff has also asserted secular beliefs.  French v. St. Charles Health Sys., Inc., No. 6:23-cv-01021-MTK, 2024 WL 5010502 (D. Or. Dec. 6, 2024).

In French, four plaintiffs sued their former employer, St. Charles Health System, Inc., for employment discrimination under state and federal law after their religious exemption requests from their employer’s vaccination policy were denied.

When one plaintiff initially sought a religious exemption to the vaccination requirement, she informed her employer that she believes her “body is a temple of the Holy Spirit” and that taking a vaccine that might be harmful to her body was inconsistent with that belief.  The plaintiff also expressed concerns over the vaccine’s potential side effects because it had not been tested for long.

St. Charles moved to dismiss under Rule 12(b)(6), arguing that the plaintiff had not adequately alleged that she held a bona fide religious belief in conflict with the vaccine mandate for two reasons: (1) her allegations about her faith were merely conclusory, and (2) her statements about potential side effects betrayed a secular concern devoid of legal protection.

The court first determined that the allegations were adequately detailed for this stage of the proceedings.  The plaintiff had explained in a letter to her employer that her beliefs were informed by her understanding of a specific passage of Scripture.  Moreover, courts tend to accept well-pleaded assertions of sincere religious belief, particularly at the motion to dismiss stage.

The court next turned to St. Charles’s assertion that the plaintiff’s beliefs were secular and could therefore not support a claim of religious discrimination.  It concluded that even though the plaintiff had asserted secular concerns about the vaccine’s safety, they did not detract from her religious motivation to avoid the vaccine.  The plaintiff’s reasons for avoiding the vaccine were still, as a whole, religious rather than secular; their overlap with her medical beliefs did not push them from the sphere of legal protection.  Thus, French’s religious discrimination claim survived her employer’s motion to dismiss.

Taking all the plaintiff’s factual allegations as true—as is required when considering a 12(b)(6) motion—the court concluded that she had plausibly alleged that she had a religious belief that conflicted with an employment duty because the vaccine mandate required a medical intervention inconsistent with her religious beliefs.

Practical Takeaways for Employers

The French decision joins a growing body of case law in vaccine litigation concluding that the articulation of secular beliefs amongst religious ones is not necessarily fatal to the employee’s religious discrimination claim at the pleadings stage.  For example, the Seventh Circuit found that an employee’s claim that “the [COVID] vaccines could pose a danger to [her] body in the form of blood clots or heart inflammation” and another employee’s claim that she did not “trust the information and long-term effects” of COVID vaccines because they were “developed in a rush” did not undermine their stated religious beliefs at the Rule 12 stage.  Passarella v. Aspirus, Inc., 108 F.4th 1005, 1007-08, 10 (7th Cir. 2024). 

In view of the relatively lenient standard that applies at the Rule 12 stage, employers should carefully evaluate the language of the particular request at issue in deciding whether a motion to dismiss on the ground that the plaintiff’s asserted objections to vaccination were secular rather than religious is a worthwhile endeavor.  Employers should note that even if an employee’s request for an exemption or accommodation to a COVID vaccine policy contains references to secular rationales like vaccine safety and efficacy, their employee may still show a religious conflict with their vaccine policy so long as the request sufficiently invokes a specific religious belief or practice.  Before rejecting such a request on account of its secular rather than religious nature, employers should seek legal advice.

Employers should also bear in mind that even though the existence of a sincere religious conflict may be a difficult issue to dispose of at the pleadings stage, summary judgment motions have had much more success.  Employers may still prevail at summary judgment by taking an assertive, proactive, and strategic approach in discovery to develop a record that demonstrates the absence of an employee’s religious conflict with an employer’s vaccine policies.

While the height of the pandemic recedes into the more distant past, litigation arising from employers’ pandemic-era policies persists, and the law in this arena continues to develop every day.  The Employment Litigation and Cultural Flashpoints teams at Seyfarth are steeped in these ongoing developments and stand ready to assist employers as they navigate the changing landscape.

Welcome to Decoding Appeals, where Seyfarth’s Appellate Team brings to in-house counsel our insights and expertise from the front lines of the appellate courts. Throughout this short video series, we break down the nuances of appellate advocacy, sharing tips and lessons we’ve learned to help companies’ in-house legal teams understand the complexities of the appeals process.

In this episode, Rob Szyba and Matt Catalano from Seyfarth’s Appellate Team discuss various facets of appellate arguments. Rob and Matt draw from their experiences arguing before various federal and state courts to compare various facets of an appeal. The discussion delves into issues such as determining whether to request oral argument, planning the leading points for argument, preparation and “mooting,” considerations for the day of the argument, and navigating a “hot bench.” 

By: Alysha Bhatia, Catherine Feldman and Elizabeth Levy

Seyfarth Synopsis: California law is complicated. When doing business in California, it helps to get the small things right – like mandatory postings. Keep reading for the signs California employers must post in the workplace

California Employers, Watch for Sharp Turns Ahead

If you operate a business in California, you know how difficult it is to keep up with ever-changing legal trends. California employers should review and refresh their workplace postings each year to keep up with legislative changes and annual minimum wage increases. Various California state agencies, including the Department of Industrial Relations (“DIR”), Civil Rights Department, Cal/OSHA, and local municipalities require employers to post information in an area frequented by employees where it may be easily read during the workday. Here are the signs you can’t ignore in California:

  1. California Minimum Wage: Employers must maintain a posting regarding the applicable state minimum wage, which increases practically every year. As of January 1, 2025, the minimum wage in California is $16.50/hour.
  2. Industrial Welfare Commission Wage Order: Employers must post the Wage Order applicable to their business type. The good news is that the DIR has published an index of businesses and occupations intended to help employers determine which Wage Orders are right for them.
  3. Payday Notice: Employers must also display a Payday Notice informing employees of their regular payday. Employers can use the template created by the state or create their own notice that clearly conveys to employees when and where they will receive their wages.
  4. Healthy Workplaces, Healthy Families Act of 2014 – Paid Sick Leave: All employers must maintain a posting alerting employees to their paid sick leave entitlement under the Healthy Workplaces, Healthy Families Act of 2014. California substantially amended its paid sick leave law in 2024, and the DIR published an updated poster. As we previously detailed, additional legislative paid sick leave changes went into effect January 1, 2025.  However, these changes are not captured in the current poster.
  5. Family Care & Medical Leave & Pregnancy Disability Leave: Employers with 50 or more employees (and public agencies) must maintain a poster advising employees of their rights to job-protected leave under the California Family Rights Act (though note that CFRA applies to employers with at least 5 employees!). The poster covers the reasons for use of CFRA leave, and employees’ right to pregnancy disability leave under California’s Fair Employment and Housing Act (FEHA).
  6. Emergency Contact Information: The DIR also requires California employers to display an emergency services contact sign. The sign must include phone numbers for fire, police, and medical services.
  7. Time Off to Vote:  Not less than 10 days before every statewide election, employers must post a notice advising employees of their right to take time off to vote.
  8. Safety and Health on the Job: Employers are required to display a poster that outlines basic requirements and procedures to comply with Cal/OSHA workplace safety and health standards. Additional health and safety related posters are required for employees who work with hazardous/toxic substances.
  9. Injuries Related to Work: Employers must post a notice that advises employees of their right to workers’ compensation benefits, how to apply for those benefits, and the contact information for the employer’s workers’ compensation insurance carrier (or a statement that the employer is self-insured).
  10. Whistleblower Protections: Employers must display a poster that explains the California whistleblower law protections, who is protected, and includes the telephone number of the whistleblower hotline maintained by the California Attorney General. The law requires that the poster be in lettering larger than size 14-point type.
  11. No Smoking: Employers must also have signs indicating  where smoking is prohibited and permitted on Company property. Additional information can be found on the DIR’s web site.
  12. Summary of Occupational Injuries and Illnesses: California employers with 11 or more employees must post Form 300A from February 1st to April 30th. This Form summarizes the total number of work-related injuries and illnesses that occurred in the previous year, including the total number of cases, days away from work, and types of injuries or illnesses. Other required occupational injury and illness forms are published on the Cal/OSHA website.
  13. California Law Prohibits Workplace Discrimination: This required poster informs employees of their rights under FEHA. It includes information on protections against discrimination and harassment based on protected categories including in part race, color, national origin, age, religion, sex, sexual orientation, gender identity, gender expression, disability, medical condition, marital status, and military or veteran status. As we previously wrote, effective January 1, 2025, the intersection or combination of protected characteristics are expressly protected from discrimination. This poster has been updated to include intersectionality.
  14. Transgender Rights in the Workplace: In addition to the general non-discrimination poster, California employers must maintain a poster that informs employees of their protections against discrimination, harassment, and retaliation based on gender identity or gender expression.
  15. Notice to Employees Regarding Unemployment Insurance (UI), State Disability Insurance (SDI), and Paid Family Leave (PFL): This required poster informs employees of their rights and benefits under California’s UI, SDI, and PFL programs. It includes links to the Employment Development Department where employees can obtain information and file benefit claims.
  16. Notice to Employees Regarding UI Benefits: This poster informs employees about their right to unemployment benefits, including who is eligible, how to file a claim, and the benefits available.
  17. Proposition 65: Proposition 65 mandates that employers with 10 or more employees provide “clear and reasonable” warnings to Californians about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. If employees may be exposed to chemicals on the Proposition 65 list at the workplace, employers may be required to post or otherwise distribute a warning.

Federal Workplace Posting Zone

In addition to California’s required postings, federal law requires employers to post certain notices.

  1. Occupational Safety and Health Act (OSHA) Job Safety and Health “It’s the Law”: Employers are required to display a poster informing employees of their rights to a safe workplace and to report work-related injuries, employers’ obligation to provide a workplace free of known hazards, and other OSHA protections.
  2. Federal Minimum Wage: Employers with employees covered by the Fair Labor Standards Act, must display a poster including the federal minimum wage.
  3. Equal Employment Opportunity Commission “Know Your Rights”: In addition to state anti-discrimination laws, employers are also required to have a poster that describes the federal protections against discrimination, harassment, and retaliation. The “Know Your Rights” poster also includes information regarding non-discrimination obligations for federal contractors.
  4. Federal Family and Medical Leave Act (FMLA): Employers must have a poster describing employee’s right to 12 weeks of job-protected leave for specific family, medical, and military-related reasons under the FMLA.
  5. The Uniformed Services Employment and Reemployment Rights Act: This required poster informs employees of their protections against discrimination based on their current or former military service status and their right to reemployment following military leave.
  6. Federal Employee Polygraph Protection Act: Under this Act most private employers must have a poster publicizing that employers are generally prohibited from requiring or requesting an employee or job applicant take a lie detector test as part of their pre-employment screening or during the course of employment. 

Additional Requirements Ahead

This list is not exhaustive. In addition to the California and federal required posters, there are additional required workplace notices for federal contractors, certain industries, specific types of employees, and employers whose employees face certain unique hazards. Local municipalities (particularly within California) have their own workplace posting requirements regarding things like local minimum wage, local paid sick leave and predictive scheduling ordinances.  

Workplace Solutions

With the overlapping layers of state and municipal laws and frequent changes to the law, it can be difficult to keep up with the latest requirements. Fortunately, Seyfarth’s California Employment Law Lookout Blog and Cal Peculiarities Blog are here to help. Sign up to stay up-to-date on the latest trends. We will keep you posted.

Welcome to Decoding Appeals, where Seyfarth’s Appellate Team brings you insights and expertise from the front lines of the courtroom. Throughout this short video series, we break down the nuances of appellate advocacy, sharing tips and lessons we’ve learned to help you navigate the complexities of the appeals process.

Back by popular demand, host Owen Wolfe is joined by Amanda Williams and Cat Johns, two former judicial law clerks, for another insightful discussion. This episode delves into the unique advantages law clerks bring to private practice, the critical role of oral arguments in appeals—including strategies for preparing for a hot or cold bench—and the art of drafting effective briefs. The speakers also examine how understanding the interplay between different court levels can influence case outcomes. Tune in for an engaging conversation that offers fresh perspectives on the appeals process and the value former clerks bring to the table.