On April 23, 2025, President Trump issued a new executive order aimed at repealing disparate impact liability. The order, titled “Restoring Equality of Opportunity and Meritocracy” (https://www.whitehouse.gov/presidential-actions/2025/04/restoring-equality-of-opportunity-and-meritocracy/), frames equal treatment under the law as “equality of opportunity, not equal outcomes.”
Disparate impact is a theory of liability that grew out of equal employment
A number of recent legal changes will have a notable impact on employee benefits law both now and in the future. Some of the most significant of those changes are the U.S. Supreme Court’s same-sex marriage decision in Obergefell v. Hodges, and the expansion of Title VII’s discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals by the Equal Employment Opportunity Commission (“EEOC”) and some federal courts.
Same-Sex Marriage: Windsor and Obergefell v. Hodges
In the 2013 Windsor decision, the U.S. Supreme Court ruled that the federal government must recognize same-sex marriages for purposes of federal law. After Windsor, the federal government issued guidance that it would look to the law of the state where the same-sex couple was married (state of celebration), rather than to the state law where the couple lived (state of residence), in most instances under federal law to determine if the same-sex couple was validly married. On June 26, 2015, the U.S. Supreme Court held, in a 5-4 decision in Obergefell v. Hodges, that state laws banning same-sex marriage are unconstitutional, and mandated that states both permit same-sex couples to marry and recognize same-sex marriages lawfully performed in other states. As a result of Obergefell, the “state of celebration” test for determining whether to recognize a same-sex couple’s marriage is no longer relevant under federal law.
Continue Reading Developments in Employee Benefits Law: Same-Sex Marriage and Title VII’s Protection for LGBT Employees
In a 3-2 decision published on Thursday, July 16, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) concluded that intentional discrimination against an employee based on their sexual orientation is sex discrimination- an act strictly prohibited under Title VII of the Civil Rights Act of 1964. “Discrimination on the basis of sexual orientation is premised
Stoel Rives Summer Associate Dexter Pearce co-authored this post.
In a case Justice Antonin Scalia described as “really easy,” the Supreme Court held that an employer can be liable for failing to accommodate a religious practice even if the employer lacks actual knowledge of a need for an accommodation. Writing for the 8-to-1 majority (Justice Thomas dissented), Scalia stressed that Title VII is concerned with motive, not knowledge. Thus, even if an employer has no more than an “unsubstantiated suspicion” of an applicant’s religious beliefs/practices, the employer violates Title VII if it’s action is motivated by a desire to avoid a potential accommodation.
Abercrombie employs a “Look Policy” that prohibits “caps.” Samantha Elauf, a practicing Muslim, applied for a retail sales position. Elauf wore a headscarf to her interview, but neither the headscarf nor religion were discussed. Heather Cooke, the assistant store manager and interviewer, identified Elauf as qualified for the position, but asked her store manager and the district manager about Elauf’s headscarf, noting that she believed Elauf wore her headscarf because of her faith. The district manager told Cooke that the headscarf would violate the Look Policy and instructed her not to hire Elauf.Continue Reading U.S. Supreme Court’s Decision in EEOC v. Abercrombie & Fitch: It’s All About the Motive
On Monday, we blogged about the first of two recent U.S. Supreme Court decisions interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”), University of Texas Southwestern Medical Center v. Nassar. Today, we’ll discuss the second decision, Vance v. Ball State University, which addressed who is a “supervisor” for vicarious liability purposes under Title VII. The decision provides clarity in a previously muddled area of law, and has important implications for employer liability for workplace harassment under Title VII.
As you probably know, Title VII prohibits discrimination in employment based on an individual’s race, color, religion, sex, or national origin, and similarly prohibits harassment resulting in a hostile work environment based on these characteristics. The plaintiff in Vance was a catering assistant who filed a lawsuit claiming that she had been subjected to a racially hostile work environment at the hands of a catering specialist in her department. Although the parties disagreed about whether the specialist was a supervisor, they did agree that she lacked authority to hire, fire, demote, promote, transfer or discipline the plaintiff. The district (trial) court found that without this authority, the specialist was not a supervisor for whose actions the employer could be vicariously liable under Title VII.Continue Reading Part 2 of 2: Supreme Court Rules That “Supervisors” Under Title VII Must Have Power to Take Tangible Employment Actions
On one day recently, the U.S. Supreme Court issued employer-friendly opinions in two separate and long-awaited cases interpreting Title VII of the Civil Rights Act of 1964 (known simply as “Title VII”), the primary federal employment discrimination statute. While both cases change little about what employers should be doing day-to-day to prevent unlawful discrimination in the workplace, both may have profound effects on the ability of employers to successfully defend against Title VII claims. In fact, this was such a big day at the Supreme Court for labor and employment law that we’re going to blog about it twice! Today, we blog about one of those cases, University of Texas Southwestern Medical Center v. Nassar, in which the Court increased the burden of plaintiff’s asserting retaliation claims under Title VII by requiring that they show their protected conduct was the “but for” cause of the adverse employment action.
Later in the week, we’ll blog about the other case, Vance v. Ball State University, in which the Court narrowed the definition of “supervisor” to only those with actual authority to hire and fire employees, limiting the situations where employers can be liable for the discriminatory acts of lower-level employees.
Nassar Requires “But For” Causation In Title VII Retaliation Cases Based On That Statute’s Structure
Title VII, as any reader of this blog probably knows, is the granddaddy of all federal anti-discrimination statutes. First enacted in 1964, its primary provision, 42 USC § 2000e-2, prohibits employers from taking employment action against employees “because of such individual’s race, color, religion, sex, or national origin.” In 1991, Congress amended Title VII to, among other things, lessen the burden of proof on causation; plaintiffs bringing discrimination claims under Title VII need only show that a discriminatory motive was “a motivating factor…even though other factors also motivated the practice.” 42 USC § 2000e-2(m). In other words, plaintiffs need not show that a discriminatory animus on the part of a manager was the only or even primary motive behind the employment action—if the employee’s race, gender, etc. was considered at all, the company could be liable for discrimination. (Section 2(m) did create affirmative defenses that allow the employer to avoid money damages in these so called “mixed motive” cases if it can show that it would have taken the adverse action anyway regardless of the discriminatory motivation).
Last year, we posted about a decision from the Southern District of Texas in which the court ruled that firing a woman because she was lactating or breast-pumping did not amount to sex discrimination under Title VII or the Pregnancy Discrimination Act (PDA). The Fifth Circuit Court of Appeals recently reversed the district court’s decision.
On Friday, April 20, 2012, the EEOC issued a landmark ruling that intentional discrimination against a transgender individual is discrimination “based on … sex” and thus violates Title VII. Prior to this ruling, the EEOC generally declined to pursue discrimination claims that arose from transgender status or gender identity issues.
What does this mean for
For many new moms returning to work after the birth of a child, pumping breast-milk is considered to be a necessary evil. Necessary because pumping ensures that these mothers’ babies can continue to experience the many benefits of breast-milk, and helps the mothers to maintain their milk supplies, relieves painful engorgement, and prevents potentially serious
As almost everyone knows, last week President Obama presented a $447 billion jobs bill, called the American Jobs Act, to a joint session of Congress full of proposals designed to stimulate the lagging U.S. economy. What many people probably don’t know is that, tucked into the bill, is a provision that would make it