By Christina Jaremus

Seyfarth Synopsis:  Illinois joined the exclusive club of now three states that require employers to offer paid leave for any reason when Governor J.B. Pritzker signed the Paid Leave for Workers Act last week.  The Act takes effect on January 1, 2024.  Illinois employees will be entitled to earn and use at least 40 hours of paid leave during a twelve-month period.  Leave must accrue at a rate of at least one hour for every 40 hours worked. 

Here’s what you need to know.

  1. Who’s Invited To The Paid Leave Party?

So how many employees does it take to get a day off? The Act requires employers with at least one employee to provide paid leave.  “Employee” in the Act has the same application and meaning as that provided in the Illinois Wage Payment and Collection Act and excludes independent contractors as well as certain railroad and student or other individuals employed less than full time or on a short-term basis for colleges and universities. Paid leave under this Act accrues at the rate of one hour of paid leave for every 40 hours worked up to a minimum of 40 hours of paid leave or such greater amount if the employer opts to provide more than 40 hours. 

  1. Reasonable Minimum Increments: “Sorry, Charlie, You Can’t Take 15 Minutes Off To Grab A Latte.  You Have To Take A Minimum Of 2 Hours.” 

Employees themselves determine how much paid leave they need to use at a time, but employers may set a reasonable minimum increment for the use of paid leave not to exceed two hours per day – unless an employee’s scheduled workday is less than 2 hours per day, then the employee’s scheduled workday shall be used to determine the amount of paid leave. 

  1. To Bank Or Not To Bank, That Is The Question

Employees are entitled to begin using paid leave 90 days following commencement of their employment or 90 days following the effective date of the Act (January 1, 2024), whichever is later.  Employers that provide the minimum number of hours of paid leave to an employee on the first day of employment or the first day of the 12-month period are not required to carryover paid leave and can require employees to use all paid leave prior to the end of the benefit period or forfeit the unused paid leave.

Paid leave may not be charged or credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit.  The Act itself does not require that any bank of paid leave be paid out to employees upon separation or at the end of the benefit year, although employers should ensure that their Handbooks and policies do not otherwise provide for such a payment upon separation if that is not the employer’s intention.  For example, if the paid leave under this Act is credited to an employee’s paid time off bank or employee vacation account then any unused paid leave shall be paid to the employee upon separation to the same extent as vacation time under existing Illinois law or otherwise.

  1. No Notice, No Reason, No Problem?  (For Employees, At Least…)

Employees can use their accrued paid leave “for any reason of the employee’s choosing” as long as the paid leave is taken in accordance with the provisions of this Act.  An employee is not required to provide an employer a reason for the leave and may not be required to provide documentation or certification as proof or in support of the leave.  Doing yoga with your dog counts.  Monday brunch counts.  Watching cat videos counts.  Anything counts.

Employees have to request leave orally or in writing in accordance with their employer’s reasonable paid leave policy notification requirements.  Requirements may include:

  • Seven calendar days’ notice before the date the leave will be given if the leave is foreseeable.
  • Notice as soon as is practicable if leave is not foreseeable, procedures for the same which must be outlined in a written policy.
  • Employers must provide employees with written notice of paid leave policy notification requirements within five calendar days of any change to the employer’s reasonable paid leave policy notification requirements.
  • Employers cannot require, as a condition of providing paid leave under this Act, that the employee search for or find a replacement worker to cover the hours during which the employee takes paid leave.

Given the fact that employers cannot require employees to provide a reason for their leave, it remains to be seen how effectively employers will be able to enforce the seven calendar day notice requirement if an employee simply calls in to work at the eleventh hour saying they need to be off for a reason that was not foreseeable or some other self-defined “emergency.”

  1. Documenting The Downtime

And wait, there’s more!  Employers must provide written notice of their employees’ right to paid leave under the law.  The notice should include the amount of leave that the employee is entitled to, the terms and conditions of the leave, and the employee’s right to file a complaint if their employer does not comply with the law.  Employers must also maintain record documenting their compliance with the Act, including the amount of paid leave provided to each employee, the purposes for which leave was taken, and any notices provided to employees.  These records must be kept for at least three years.

  1. Retaliation Roulette: The Risks Employers Take by Ignoring Paid Leave Rights

The Act prohibits retaliation against employees who exercise (or even “attempt” to exercise) their rights under the Act, opposing a practice an employee believes violates the Act, or even supporting another employee in exercising their rights under the Act.

Penalties and fines for violations are significant, including damages in the form of the actual underpayment, compensatory damages, a penalty of up to $1,000 (but not less than $500), reasonable attorney’s fees, reasonable expert witness fees, and other costs of the action.  Employers who violate the Act shall also be subject to a civil penalty of $2,500 for each separate offense.

  1. Take A Break And Don’t Get Left Behind (Legally, That Is)

If your Company already offers a comparable amount of paid leave to employees that meets the Act’s requirement, it likely does not need to provide additional paid leave.  But the Act implicates policies regarding leave accrual and usage, employee requests for leave, record keeping to support employee’s use of paid leave, notice, the applicable rate of pay for paid leave, and pay for accrued leave at the time of separation.  So, employers may want to give those a fresh look.  And if your Company does not offer paid leave, it will likely need to do so and prepare a policy on the same.

By Christopher DeGroff, Andrew Scroggins, Sarah Bauman, and James Nasiri

Seyfarth Synopsis: On March 13, 2022, the EEOC released its fiscal year (“FY”) 2022 performance report (“APR”). The APR is the EEOC’s own “report card.” It analyzes the Commission’s performance results based on its Strategic Plan for FYs 2018-2022. A close read of the APR reveals valuable insights into the EEOC’s strategic priorities and offers a unique lens into what employers can expect from the Commission moving forward.

EEOC Enforcement Highlights: Filings Down While Amounts Recovered Increase

The EEOC’s APR touted another successful year on the enforcement front, with a focus on sheer volume of cash recovered from employers during FY 2022. During the last FY, the Commission secured over $513.7 million for victims of discrimination. This represents a whopping $30 million increase compared to FY 2021, in which the EEOC recovered approximately $485 million for workers. Digging deeper, however, reveals that the private sector and state and local municipalities fared better in FY 2022, as the Commission actually secured less monetary relief in total and per capita as compared to the prior year: $342 million for 33,298 employees in FY 2022 v. $350.7 million for 11,067 employees in FY 2021. The EEOC made up for this delta, however, by recovering $132 million for federal employees and applicants in FY 2022, which is a notable increase over the $100 million it secured for the same sector in FY 2021.

As we previously forecast months ago, however, the EEOC was less active during FY 2022 as compared to the prior FY on three important metrics: new litigation cases opened, existing litigation cases closed, and mediation resolutions. In FY 2022, the EEOC filed 91 lawsuits, including 53 cases on behalf of individuals and 13 systemic lawsuits. That’s down from FY 2021, when the Commission filed 116 lawsuits, 74 of which were on behalf of individuals and 13 of which were systemic matters. The EEOC’s case closure activity was also relatively sluggish in FY 2022. The EEOC resolved 96 lawsuits in FY 2022, which is down from resolving 138 lawsuits in FY 2021. Moreover, the Commission was slightly less successful in its mediation efforts in FY 2022, as it conducted 6,578 successful mediations resulting in $170.4 million in FY 2022 (compared to 6,644 mediations for $176.6 million in FY 2021).

Aside from its litigation statistics, the EEOC’s APR also chronicles recent charge data.  The EEOC saw a dramatic increase in the amount of discrimination charges filed in FY 2022, as the EEOC clocked 73,485 charges during its most recent fiscal year, compared to receiving just 61,331 charges in FY 2021. A 12,000-charge increase is certainly eye-catching.  Some commentary has speculated that this charge rise was tied to the ebb of Covid-19.  However, sources have also indicated that in the weeks before FY 2022, EEOC leadership pulled investigatory resources away from processing pending charges, and redirected them to “mining” digital inquiries by potential charging parties to further assess interest in formally filing a new charge.  This additional attention to developing new charges (rather than investigating pending claims) appears to have made a meaningful impact on the FY 2022 figures.  This same reallocation of resources also would explain why the EEOC collected less monetary relief at the charge stage, which the APR discloses fell to $342 million in FY 2022, versus almost $351 million in FY 2021.

Notable Priorities Emphasized In The FY 2022 APR

While the APR generally follows the format of the Commission’s Strategic Plan, a detailed analysis of the Report can still shed light on what employers can expect from the EEOC in 2023-24. One emerging issue on the EEOC’s radar is the use of artificial intelligence (“AI”) in the workplace. The APR trumpets that it has trained all of its systemic enforcement teams on AI, issued a guide on the intersection between AI and the Americans with Disabilities Act (“ADA”), and hosted 24 “AI and algorithmic fairness outreach events” in FY 2022. The EEOC also highlighted a lawsuit that it filed related to an employer’s use of AI in its hiring process, captioned EEOC v. iTutorGroup, Inc., No. 1:22-cv-2565 (E.D.N.Y). All signs point toward increased scrutiny of employers’ use of AI in the years to come.

The FY 2022 APR also underscored how the EEOC – along with nearly every employer throughout the country – is still dealing with the effects of the COVID-19 pandemic. To that end, the Report noted that, during FY 2022, the EEOC updated its guide for employees on COVID-19 and workplace discrimination laws a total of seven times, in addition to holding 369 outreach events concerning the pandemic. The EEOC also received over 10,000 charges of discrimination related to COVID-19 and filed two ADA lawsuits on behalf of immunocompromised employees in FY 2022. While COVID’s spread seems to have slowed, the past challenges it presented to employers will continue to work their way through the system.

The APR also highlighted several areas of enforcement that are consistently high on the EEOC’s priority list. Specifically, the report emphasized the EEOC’s goal of advancing racial justice in multiple contexts, including by highlighting the 20 lawsuits and 18 settlements involving race or national origin discrimination allegations in FY 2022. Retaliation is also a routine focus of the Commission and this past FY was no different. During FY 2022, the EEOC filed 32 retaliation lawsuits, resolved 26 retaliation cases, and conducted 384 retaliation outreach events (which was over 240 more events that the Commission held for any other outreach area). Furthermore, while pursuing systemic litigation is always a priority for the EEOC, its systemic-related performance measure was the only performance metric it failed to meet in FY 2022. We can reasonably expect the EEOC will aggressively seek to rectify that miss in FY 2023.

Finally, the APR concluded by discussing three “major management challenges” facing the EEOC, as identified in the Office of Inspector General’s FY 2022 Management Challenges Report. This past year, the Commission’s major management challenges were reentry, mission-critical data system modernization, and digital records management. The reentry challenge is one experienced by employers through the U.S., as the EEOC worked to bring its staff back into its physical offices in FY 2022. As to the EEOC’s data system modernization, these efforts focused on internal technological systems as well as external systems used by employers, such as the Respondent Portal. According to the EEOC, it is now more well-positioned than ever to achieve a complete overhaul of its digital systems. Lastly, the Commission’s efforts in terms of digital records management are largely focused on improving its efficiency in processing FOIA requests. The APR noted that – thanks to its efforts to transition to digital records – the EEOC had a historically low number of only 86 overdue FOIA requests in FY 2022.

Implications for Employers

Employers can discern several practical takeaways from the EEOC’s FY 2022 APR. Specifically, given the Report’s emphasis on the use of AI and other automated technology in the workplace, employers can expect the EEOC to pay close attention to any use of such technology in the hiring process or otherwise. Addressing race discrimination and acts of retaliation also continue to be top litigation priorities at the Commission. Employers should ensure that their employees are receiving adequate training on both of these timely issues.

Finally, while the EEOC’s FY 2022 enforcement activity remained relatively low, employers should not expect this to be the “new norm” at the Commission. Indeed, despite a Democratic President who appointed a Democratic Chair of the EEOC, the Commission still does not have a Democratic majority until the Senate confirms the appointment of Kalpana Kotagal. Once that final piece in the political puzzle falls into place, we can expect to see an accelerating, aggressive pursuit of enforcement efforts across the EEOC’s platform, particularly in the areas of systemic cases. As always, if our reader wishes to take a deeper dive into any of these topics, we invite you to download our eBook, EEOC-Initiated Litigation, 2023 Edition.

By Robert T. Szyba, John W. Egan, and Nicolas A. Lussier

Seyfarth Synopsis: Summer hiring for entertainment companies and various attractions is in full-swing. Since last year, legislatures across the country have focused their attention on expanding employee protections. Now more than ever it is necessary for employers to apprise themselves of recent developments that might impact recruitment and hiring practices such as background checks and pay transparency laws, employee disability accommodations, eligibility for paid sick leave, employee rest laws, medical and recreational cannabis, union activity, and ADA Title III public accommodations.

As the 2023 summer hiring season begins, employers should take note of several legal developments that could materially impact decision-making at various stages of the employment relationship, starting with recruitment and hiring.  Jurisdictions across the country have broadened workers’ rights by enacting new statutes and regulations that govern the way employers communicate with applicants, current employees, and the public. These developments include things like pay transparency laws, paid sick leave laws, meal breaks and pay requirements, compliance with the Americans with Disabilities Act, background checks, and increased interest in unionization.

  1. Pay Transparency Laws: States and local jurisdictions, like New York City, California, Colorado, and Washington, among others (with additional bills pending at press time), require job postings to contain a wage scale or salary range under certain circumstances. There are nuances unique to each such law as to what must be disclosed, when, in what format, and under what circumstances, as well as whether the requirements apply to remote or hybrid positions.  Employers operating in these jurisdictions should apprise themselves of these requirements to ensure compliance as 2023 hiring begins.
  2. Paid Sick Leave Laws: Multiple states enacted paid sick and safe leave laws that could apply to seasonal workers. For example, California requires accrued and unused sick leave to be restored if a covered employer re-hires the same worker within 12 months from the previous separation. As for New York,  the state’s sick and safe leave law applies to all private sector workers working for a covered employer, regardless of industry, occupation, part-time status, overtime exempt status, and seasonal status.
  3. Meal Breaks; Clock-in/Clock-out Rules: Some states maintain rules governing meal breaks. California, for example, draws a lot of attention because of its meal and rest break laws, but other states, like Illinois, Nevada, and New York, among others, also enforce a variety of meal and/or rest break obligations. Similarly, various jurisdictions regulate employee clocking-in and clocking-out, which themselves involve various nuances. Still other jurisdictions also have rules regulating certain wage notices that need to be provided at the time of hire, as well as the information that must be contained on a pay stub. Last, there has been an increase in class action litigation pertaining to pay frequency and the timing of regularly scheduled pay periods. 
  4. ADA Title III Compliance: In addition to their role as employers, entertainment and attractions companies are also places of public accommodation with an obligation under Title III of the ADA to provide equal access to their facilities, products and services to customers with disabilities.  In this space, the absence of effective regulation has resulted in the explosive growth of website accessibility litigation, particularly in key jurisdictions like New York, California, and Florida.  In 2022, 3,255 federal lawsuits  were filed over allegedly inaccessible websites (not including demand letters and state court cases), which represents a nearly 400 percent increase in the last five years.  While federal and state disability access laws have not squarely addressed website accessibility, enforcement proceedings initiated by the U.S. Department of Justice, as well as certain court rulings have contributed to legal uncertainties regarding whether, and to what extent, public accommodations need to make their digital properties accessible, resulting in the emergence of a “cottage industry” of serial filings directed at a broad scope of industries, including entertainment and attractions.
  5. Background Check Requirements: During the last several years many state and local jurisdictions passed “Ban the Box” laws that regulate above and beyond federal law the types of information employer can obtain or consider as part of a criminal background check. States such as California, Illinois, Massachusetts, and Washington, and various localities like Westchester County (NY), Chicago, Philadelphia, Washington DC, San Francisco, Los Angeles, and New York City, have passed a varieties of laws resulting in a patchwork of requirements and regulations. In addition to regulating the types of information that can be obtained and considered, such laws often require specific procedures and notifications that must be made prior to taking an adverse employment action.
  6. Cannabis: A multitude of state and local jurisdictions added laws regulating cannabis. Some states permit medicinal use only while others have decriminalized or legalized cannabis use.  For example, the use of cannabis by adults over the age of 21 is generally considered to be protected activity under Section 201-D of the New York Labor Law. Some of these state and local laws directly impact employers’ ability to do pre-employment and post-incident drug testing, as well as creating obligations for disability accommodations. As with some of the examples above, this has resulted in a nationwide patchwork of regulations.
  7. Union Activity: Employers should be aware of increased union activity among employees covered by the National Labor Relations Act. In fiscal year 2022, approximately 2,510 union representation petitions were filed with the NLRB’s 48 Field Offices—a 53% increase from the 1,638 petitions field in 2021. This is the highest number of union representation petitions filed since 2016. Indeed, accounting for both unfair labor practice charges and representation petitions, total case intake at the Field Offices increased 23%—from 16,720 cases in 2021 to 20,498 cases in 2022. This increase of 3,778 cases is the largest single-year increase since 1976 and the largest percentage increase since 1959. This increase in union activity has impacted a broad range of industries and employers.
  8. Temporary Staffing Laws: Recently, New Jersey enacted the Temporary Worker Bill of Rights. The new law requires temporary help service firms to provide notice covering approximately a dozen different points and requires temporary workers to be paid minimum wage after accounting for meal and transportation deductions. Additionally, the law provides that temporary workers must be paid the same average rate as compared to permanent counterparts under certain conditions (wages and benefits). The law also provides for joint liability, so any business utilizing temporary workers should take note of this expansive law. Indeed, the law covers more than what is discussed in this update. For more information, see Seyfarth’s alert here.

With all these developments, attractions and entertainment employers embarking on hiring for the 2023 season have a variety of new and updated legal requirements and obligations to factor into their policies and practices. Employers with any questions can feel free to reach out to Seyfarth for any assistance with auditing existing policies or practices, recommendations on best practices in light of these legal developments, and for assistance and defense of any active disputes.

Seyfarth Synopsis: On Equal Pay Day 2023, Seyfarth’s Global Pay Equity Group is pleased to release four reference guides: Our updated 50 State Equal Pay Reference Guide, Developments in Equal Pay Litigation, and Global Pay Equity Desktop Reference Reports — and introducing our new Pay Transparency Wage Range Disclosure Compendium. 

On Tuesday, March 14th, Seyfarth attorneys Annette Tyman and Matthew Gagnon presented a webinar entitled Equal Pay Day 2023: A Look Ahead into Trends in the Equal Pay Landscape which featured an in-depth discussion of key trends and strategies to ensure equality in pay, including:

  • The continued push towards increased reporting and transparency from various stakeholders
  • Proactive strategies to ensure compliance with equal pay and transparency regulations
  • Defensive strategies for employers when pay-based litigation arises, and
  • Best practices for proactively managing equal pay risks.  

All of the members of Seyfarth’s Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2023 both in the U.S. and around the globe. We stand with you to support these efforts.

Seyfarth Synopsis: With 2023 underway, have you checked the pulse of your employment policies and practices? Do they need a face-lift at all? Are you concerned that they might not pass a wellness test?

Have no fear, our Seyfarth specialists are here to help give them a check-up and make sure they are following all of the doctors’ (okay, lawyers’) recommendations.

When:  Wednesday, March 22, 2023
8:30 a.m. to 9:00 a.m. Breakfast and Registration
9:00 a.m. to 10:30 a.m. Program

Where: Seyfarth Shaw LLP
233 S Wacker Drive, Suite 8000
Chicago, IL 60606

Join us for our Q1 Breakfast Briefing on March 22. The employment areas we will examine are as follows:

  • Policies: Make sure your 2023 handbooks and policies are in tip-top shape so that you do not lose sleep over whether you have risks of which you are not aware.
  • Training: are your supervisors and managers ready to recognize the signs of a problem? Have you equipped them with the information necessary to diagnose and treat that problem? Our Team of Seyfarth at Work specialists will introduce you to some ways you can cure the symptoms you may be experiencing.
  • Offboarding, RIFs, and Separation Agreements; taking on or taking off employees can be challenging, particularly if outside factors are weighing on your decision making progress. There are best practices of which to be mindful and our experts will offer their opinions on how to navigate those challenges. 

Our speakers will be:

David Baffa, Partner, Seyfarth Shaw LLP
Rachel Guisinger, Managing Director, Seyfarth at Work, Seyfarth Shaw LLP
Saman Haque, Associate, Seyfarth Shaw LLP
Philippe Weiss, President, Seyfarth at Work, Seyfarth Shaw LL

Register Here

If you have any questions, please contact Sarah Gschwind at sgschwind@seyfarth.com and reference this event.

Learn more about our Labor and Employment practice.

By Grayson Moronta and Courtney Stieber

Seyfarth Synopsis: On February 27th, 2023, the Second Circuit Court of Appeals (Second Circuit) issued its decision in Slattery v. Hochul, holding that Evergreen Association, Inc., a non-profit organization can challenge New York state officials in a suit seeking to enjoin enforcement of New York Labor Law 203-e. New York Labor Law 203-e, popularly known as the “Boss Bill”, prohibits employers from taking adverse employment actions against employees based on their reproductive health decisions. The Second Circuit held that the law unconstitutionally interferes with the Evergreen’s expressive association rights and remanded the case to the district court for further consideration.

Background

  1. History of New York Labor Law 203-e:

The New York legislature enacted Senate Bill S660, popularly referred to as the “Boss Bill”, and codified as New York Labor Law 203-e on November 8, 2019. The law provides that “[a]n employer shall not . . . discriminate nor take any retaliatory personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the employee’s or dependent’s reproductive health decision making.” The Boss Bill additionally prohibits an employer from accessing an employee’s personal information regarding the employee’s reproductive health decision making.

The Boss Bill is applicable to all employers and does not contain an express exemption for religious employers or for small employers who have objections to abortion.

The Boss Bill allows for government enforcement and vests the Commissioner of New York’s Department of Labor with the authority to enforce all provisions of the statute. The Commissioner may issue orders to employers directing compliance. The statute also creates a private right of action; an employee is thus able to bring a civil action in any court of competent jurisdiction against an employer alleged to have violated the provisions of the Boss Bill and allows a prevailing employee to seek damages, including attorney’s fees, injunctive relief, reinstatement and/or liquidated damages.

  • Factual Background:

Evergreen Association, Inc., operating as Expectant Mother Care and EMC FrontLine Pregnancy Center is a New York based non-profit organization that operates a network of pregnancy crisis centers. These centers discourage abortion and provide pregnant women with ultrasounds, counseling, and information on adoption. Based on its moral and religious objections to abortion, Evergreen hires only employees who can credibly communicate to patients its “opposition to abortion and to sexual relationships outside of marriage and related use of potentially abortifacient contraception.” Evergreen asks each prospective employee whether they are pro-choice or pro-life and it will not consider for employment an applicant who expresses support for abortion.

In January 2020, Evergreen filed a complaint in the Northern District of New York for declaratory and injunctive relief, naming state officials as defendants in their official capacities. Evergreen sought a declaration that the Boss Bill  was unconstitutional and an injunction prohibiting the state from enforcing the Boss Bill against Evergreen.

  • Procedural History:

At the district court level, Evergreen argued that the statute was unconstitutional, arguing that the statute violated its First and Fourteenth Amendment rights to freedom of expressive association, freedom of speech, free exercise of religion, and its Fourteenth Amendment right to due process due to vagueness.

The state moved to dismiss the complaint in its entirety, arguing that the Boss Bill was a constitutional exercise of its police power in furtherance of the state’s interest in nondiscrimination. The state argued that in passing the Boss Bill, it aimed to protect its citizens’ right to privacy in the confidentiality of their medical information and autonomy in decisions related to their body, health, and family planning. The state also argued that the statute was generally applicable to all employers, including religious employers.

The district court agreed with the state and dismissed all of Evergreen’s claims. First, the district court found that the law was both religion-neutral and generally applicable and that it did not impermissibly target religious conduct. Applying rational basis review, the district court  concluded that “the statute bears a rational relationship” to the state’s interests in protecting “individuals’ right to privacy and personal autonomy as it relates to health-care decisions surrounding reproduction” and “in protecting against workplace discrimination.”

Second, the district court determined that the statute was content-neutral and did not abridge the freedom of speech because the regulations of speech are reasonable, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of information.

Third, the district court found that Evergreen failed to state a claim that the Boss Bill infringed its right to freedom of expressive association. While the court found that Evergreen adequately alleged that it engaged in expressive association, the court found that requiring Evergreen to engage with employees or prospective employees who do not share its views on abortion was merely an incidental limitation on its associational rights and did not “place a restriction on their ability to advocate against abortion or contraception.” The court reasoned that this limitation posed only a “danger that others could call the Plaintiffs hypocrites” and, “[g]iven the way that our political discourse currently works, such allegations are surely a feature of advocacy in the highly charged area in which the Plaintiffs engage.” The district court ruled that the statute “needs only to survive rational basis scrutiny” and that it “does so.”

Finally, the district court rejected Evergreen’s claim that the statute was unconstitutionally vague. The district court held that an “ordinary employer” would understand that the statute prohibits “accessing an employee[’s] medical record to determine whether that employee had used birth control or not, or had an abortion or carried a child to term,” and “discrimination against or retaliation against an employe[e] for decisions made about birth control or pregnancy.”

Second Circuit Decision:

Evergreen appealed this decision and upon de novo review, the Second Circuit affirmed the district court’s ruling as to Evergreen’s freedom of speech, free exercise of religion, and vagueness claims. However, it reversed the district court’s decision on the expressive association claim, holding that Evergreen was engaged in expressive activity, and also plausibly alleged that the Boss Bill significantly, and not incidentally, burdens its right to freedom of expressive association.

The Second Circuit noted that in Roberts v. U.S. Jaycees, the U.S. Supreme Court recognized a right to associate for the purpose of engaging in First Amendment-protected activities. These expressive association rights include an implicit right to engage in activities protected by the First Amendment and a corresponding right to associate with others in the pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.

Next, the court considered whether the Boss Bill “significantly burdens” Evergreen’s right to freedom of expressive association, such that strict scrutiny analysis would apply—and not rational basis, as the district court determined.

Quoting Roberts, the court stated that a “regulation that forces the group to accept members it does not desire … may impair the ability of the original members to express only those views that brought them together.” Applying this, the Second Circuit found that the burden placed on Evergreen was substantial. The court reasoned that the right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views. To decide whether someone holds certain views—and therefore would be a reliable advocate—Evergreen asks whether that person has engaged or will engage in conduct antithetical to those views. According to the court, Evergreen plausibly alleged that, by foreclosing Evergreen’s ability to reject employees whose actions suggest that their beliefs are different from the message it is trying to convey, the Boss Bill severely burdens Evergreen’s First Amendment right to freedom of expressive association and as such, strict scrutiny is applicable.

Under a strict scrutiny analysis, the court stated that the burden is on the state to show that the regulation was adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. At this early stage in the litigation, the court found that the state had not met its burden of showing that the Boss Bill is the least restrictive means to achieve a compelling objective.

The court went even further to state that even if preventing discrimination based on one’s choice to engage in certain, legally authorized conduct is a compelling state interest, that is not enough to overcome the expressive association rights of an organization such as Evergreen. On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion. On the other side is the First Amendment right of a particular association—in this case, Evergreen—to advocate against that conduct. The court noted that Evergreen’s beliefs about the morality of abortion are “its defining values; forcing it to accept as members those who engage in or approve of [that] conduct would cause the group as it currently identifies itself to cease to exist.” Accordingly, the balancing of interests favors the expressive association that opposes the conduct the state would protect against discrimination. Thus, the Second Circuit held that the district court erred in dismissing expressive association claim and remanded the claim for further considerations.

This case comes on the heels of Dobbs v. Jackson Women’s Health Organization, the 2022 Supreme Court decision overturning Roe v. Wade, which guaranteed a constitutional right to abortion.  It remains to be seen to what extent the Slattery decision may impact the application of the Boss Bill or other types of anti-discrimination legislation going forward.  This case is one for employers to watch, and particularly, to look out for whether this issue will be revisited by the U.S. Supreme Court.

By Rachel Bernasconi, Justine Giuliani, Sarah Goodhew, Erin Hawthorne, Philippa Noakes, Kathryn Weaver and Tessa Cranfield

Seyfarth Synopsis: As all of us, and all of us at #Seyfarth celebrate International Women’s Day, several of our global partners provide their thoughts and insights on how both international and domestic employers can #EmbraceEquity (the theme of this year’s campaign) in their workplaces. 

This year, the campaign theme for International Women’s Day is #EmbraceEquity. This theme encourages people to acknowledge and understand that providing equal opportunities is not enough to achieve inclusivity. This is because equality-based solutions assume a level playing field––the same resources are allocated to all, disregarding the fact that those at a disadvantage will remain so. Instead, to achieve inclusivity, opportunities provided to women, particularly in the workforce, need to be based on the principle of equity. Equity-based solutions consider diversity by adapting and allocating resources according to need, which means a fairer work environment for all. Employers looking to ensure equity for women is incorporated into their DEI strategy should strive to not only identify the specific requirements of female employees but also look to ensure the sub-demographics of women, related to ethnicity, age, religion, gender identity, disability and sexual orientation, are also taken into account when formulating relevant strategies and policies.

To celebrate International Women’s Day 2023 (IWD), we asked our female leaders from our International Employment practice to share their insights on fundamental ways that leading employers can #EmbraceEquity in the workplace.

How leading employers can foster an equitable workplace

Rachel Bernasconi, employment law partner in Seyfarth’s Sydney office, concedes that if there was an easy way to achieve equity, we would have achieved it by now. Although embracing equity involves a lot of effort, Rachel counsels employers not to despair. Rachel believes it’s important for employers to strive to make steady, consistent, and incremental progress towards equity. Rachel says employers “should keep trying new ways of doing things and be open to new approaches to activities. Question whether these activities can be done differently and in a more equitable and inclusive way”. Consultation around what equity means for employees is key–Rachel encourages employers to listen to their younger employees and those with diverse backgrounds who might have ideas about better ways to do things or to approach issues that are not constrained by history or ‘the way it has always been done’.

Tessa Cranfield, employment law partner in Seyfarth’s London office, is excited by recent trends towards a compressed four-day week in Europe. A majority of UK employers who just participated in a UK-government-supported pilot have decided to maintain the model. Building on the more flexible working patterns out of the pandemic, she sees this as offering better prospects for working parents to keep their careers on track, and for less of the parenting burden to fall on women. She is (optimistically) hoping that agile working along with the trend towards increased pay transparency in Europe will continue to move the dial.

Justine Giuliani, employment law partner in Seyfarth’s Melbourne office, agrees with author Stephen Covey, who said: “Strength lies in differences, not in similarities”. Justine believes that a team is ultimately the sum of its parts and that to embrace equity, employers should start with simple and effective aims such as creating a sense of belonging at work and fostering a team that celebrates difference. Justine says, “if employers can get the basics right, the foundation for growth and success is there”.

Sarah Goodhew, workplace health and safety partner in Seyfarth’s Sydney office, thinks it’s serendipitous that we are thinking about embracing diversity while Sydney is hosting World Pride, with lots of displays throughout the city (and no doubt other cities) celebrating inclusivity. Sarah recommends employers look at whether there is equity in the systems and processes within their business, not only whether there are equitable outcomes because, as Sarah puts it, “ the journey is as important as the destination”. Sarah points out that there are numerous studies that support that diversity, equity and inclusivity generate greater business performance outcomes, so an equitable workplace is not only a recruitment and retention tool, but it is also something that is necessary for business growth. Sarah acknowledges that leading employers know this and are striving to embed equity throughout their internal practices and systems.

Erin Hawthorne, employment law partner in Seyfarth’s Melbourne office, says that “genuine efforts” to level the playing field for all genders in the workplace is essential. But she acknowledges that identifying the gender based hurdles that trip people up before they even get in the race is tricky. Erin believes that leading employers who are committed to equity will be looking at the reasons why workers of particular genders are more or less comfortable in certain roles or more or less likely to apply for or secure promotions, and thinking creatively about how to help them overcome those obstacles and succeed. This also entails taking steps to ensure that equity programs align with the ‘special measures’ discrimination exemptions available under equal opportunity laws. 

Philippa Noakes, employment law partner in Seyfarth’s Sydney office, says employers should be aware that their employees come to work with a range of personal experiences and/or life pressures. She adds that it’s important that employers give consideration to how, as an organisation, they can celebrate wins, track work progress, organise work meetings and socialise in a manner that is inclusive. Philippa says, “it can be easy to adopt a regular arrangement for such practices but keeping an open mind about how those practices can be adapted to enable participation by employees who might otherwise be unable to participate for a range of personal reasons, can have a positive impact on your workplace.” By being proactive and flexible with those practices, Philippa believes organisations can be more inclusive.

Kathryn Weaver, employment law partner in Seyfarth’s Hong Kong office, says that to retain women in the workplace and help them advance into leadership positions, leading employers must seek to find ways to reduce the impact of the motherhood penalty on female workers. Kathryn adds that “mothers who choose to remain in the workforce often miss out on pay rises, bonuses and opportunities such as promotions, because of the time they have taken away from work or because of assumptions made about their ambition, focus and abilities”. Some jurisdictions in Asia Pacific have legislated for shared parental leave in a bid to allow greater flexibility and choice in parenting/career decisions between partners. In those countries, Kathryn believes employers should encourage their employees to take advantage of the shared parental leave option, whilst making it clear to employees that neither parent will suffer a disadvantage due to spending valuable time starting or continuing a family. Kathryn also has advice for leading employers operating in jurisdictions where there is no statutory right to shared parental leave: create internal policies and practices that make the sharing of parental responsibilities between parents not just the norm, but also accepted and celebrated. Shared parental leave also creates greater equity for LGBTQ couples and couples having families in non-traditional ways (depending on how the law/policy is drafted).

IWD’s theme for this year is #EmbraceEquity. For more IWD information and resources, please visit www.internationalwomensday.com.

By Darien C. Harris, Dawn Reddy Solowey, and Lynn A. Kappelman

Seyfarth Synopsis: As of February 28, 2023, diverse coalitions – including a host of Republican Congressmen and 22 state Attorneys General – have filed nearly thirty amicus briefs urging the United States Supreme Court to seize the opportunity to overturn the decades-old de minimis standard to religious accommodation claims.

Last month, Seyfarth Shaw blogged that the U.S. Supreme Court has agreed to reconsider its decision in Trans World Airlines, Inc., v. Hardison.  Decided in 1977, Hardison is the seminal case establishing that an employer is not obligated to accommodate an employee’s religion if the accommodation would create more than a “de minimis” burden on the employer’s operations.  

An appeal from the Third Circuit has now called Hardison into question, prompting over two dozen coalitions to add their two cents as to why the Court should overturn Hardison’s 45-year-old precedent.

Notably, several Republican U.S. Senators and House Representatives filed an amicus brief encouraging the Court to “overrule Hardison’s ‘more than a de minimis cost’ standard and replace it with ‘significant difficulty or expense.’” The GOP lawmakers contend that the Hardison standard is irreconcilable with the plain language of Title VII which states that an employer must accommodate an employee’s religious observance or practice unless the employer can demonstrate that the accommodation would cause an “undue hardship.” In their brief, the lawmakers emphasized that, although Congress did not define “undue hardship” when it drafted Title VII, it made sure to define that phrase when contemplating the Americans with Disabilities Act in an explicit attempt to distinguish its intent from the Court’s interpretation in Hardison. Under the ADA, “undue hardship,” means “a significant as opposed to a de minimis or insignificant, obligation on the part of employers.”  This amicus lends support to speculation that the Court will use other civil rights legislation as guidance in crafting a new standard for religious accommodation claims. The lawmakers were also keen to persuade the Court not to bounce the issue back to Congress to amend Title VII,  stating “[t]he watered-down definition in Hardison contradicts this intent and is this Court’s mistake … This Court thus has a duty to rectify its misinterpretation of the ‘undue hardship’ standard before it wreaks any more havoc on religious employees.”

Republican state attorneys general took a different approach. In their brief, the AGs dismissed economic concerns that overturning Hardison would be financially burdensome to the private and public sectors through the expense of accommodation or flooding the court system with costly litigation, stating “[r]eligious respect shouldn’t disappear over concerns of a few dollars and cents.” The AGs noted that many states already applied the stricter “significant cost and expense” standard when deciding religious discrimination claims under state law.  Moreover, the AGs argue that robust accommodations for religious workers are in the states’ best interest because state governments are often the largest employers within their borders, but have struggled to find and retain skilled employees in recent years. “So States want it to be clear that religious adherents are welcome in government jobs.”

Finally, several faith-based organizations also seek the Court’s ear as it reconsiders Hardison, presenting both sociological and legal arguments. The Reiders Foundation, a non-profit organization dedicated to enhancing Jewish culture and the civil rights of the Jewish people, noted that the history of discrimination against Jews in the United States dates back to 1654, chronicling historical examples of marginalization of Jews in the American workforce. The Foundation encourages the Court adopt a new rule where “in providing a reasonable accommodation to an employee it is appropriate to consider hardship to the employer when the accommodation will involve significant costs, or violation of collective bargaining agreements or other contracts that are inconsistent with the ability of the employer to conduct the business. Where the employer is a government agency, the employer should be required, consistent with constitutional principles, to provide a compelling reason why it cannot or will not attempt to afford a reasonable accommodation.”

Other coalitions include The Council on American-Islamic Relations, which focused on the discrimination experienced by Muslim women who wear hijab, a traditional headscarf “designed to remove focus from the physical appearance and instead place it on the person’s character.” The Council argues that “[b]ecause of Hardison’s overly deferential de minimis standard, Muslim women have lost employment opportunities purely because the hijab is not contemplated by the employer’s ‘look’ policies.”  In their brief, the Council recounts the overlooked biases in favor of mainstream Christian practices that absolve practicing Christians from even needing to request an accommodation from their employer, as well as pending litigation regarding hijabs. “Even if a plaintiff ends up prevailing, the plaintiff has lost her job, lost income, and was forced to sue a former employer – something prospective employers will discover. This toll has been exacted on scores of Muslim women.”

TAKEAWAYS In sum, the attention that this case has garnered is indicative of its significance and its potential to change the landscape of this area of law. The arguments presented in favor of heightening protections for religious observance are almost as diverse as the coalitions that are unified in the desire to see Hardison overturned. Seyfarth Shaw will continue to closely track and provide updates on all pivotal stages of this case as it develops.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis:  President Biden recently proclaimed March 2023 as Women’s History Month. Biden also introduced womenshistorymonth.gov, for learning more about the contribution of women in our Nation’s history. 

During Women’s History Month, we celebrate the countless women who have fought tirelessly and courageously for equality, justice, and opportunity in our Nation.  We also reaffirm our commitment to advancing rights and opportunities for women and girls in the United States and around the world.  We are mindful that we are building on the legacy of both recognized trailblazers and unsung heroines who have guided the course of American history and continue to shape its future.

The proclamation notes that women have been “on the frontlines, fighting for and securing equal rights and opportunity throughout our country’s history as abolitionists, civil rights leaders, suffragists, and labor activists. Women continue to lead as advocates for reproductive rights, champions of racial justice, and LGBTQI+ equality.” 

“Leading our efforts is the most diverse group of women at the highest levels of Government in United States history, including Vice President Kamala Harris and a record number of female cabinet secretaries.  Together with the most diverse set of judges ever nominated to the Federal bench — including Supreme Court Justice Ketanji Brown Jackson — women are seated at every table where decisions are being made”.

This month at Seyfarth, as we continue our work to advance gender equity and equality, Seyfarth will celebrate and honor women in the ranks of our firm.  For instance, this year, it is especially meaningful as Seyfarth will be making history: Partner Lorie Almon is poised to become the firm’s first female chair and managing partner—something we will be celebrating far beyond this month.

Please reach out to your Seyfarth attorney with any questions.

By Annette Tyman and Matthew J. Gagnon

On Tuesday, March 14th, Seyfarth attorneys Annette Tyman and Matthew J. Gagnon, will present a webinar entitled Equal Pay Day 2023: A Look Ahead into Trends in the Equal Pay Landscape.

Time of the event:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

About the Program

Please join us on Equal Pay Day 2023 for an in-depth discussion of key trends and strategies to ensure equality in pay, including:

  • The continued push towards increased reporting and transparency from various stakeholders 
  • Proactive strategies to ensure compliance with equal pay and transparency regulations
  • Defensive strategies for employers pay-based litigation arises, and
  • Best practices for proactively managing equal pay risks.  

We will also share our updated 50-State Pay Equity Desktop Reference and Developments in Equal Pay Litigation reports, and our annual Global Pay Equity Reporting Desktop Reference.

Register