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June 2024 -
DEI and Best Practices in Corporate America: Harvard/UNC One Year Later
As the first anniversary of the decision approaches, we examine recent legal developments related to corporate DEI efforts and offer considerations for companies that wish to assess their DEI programs, understand their legal exposure, and implement mitigation strategies.
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06/07/2024 -
Eleventh Circuit: Grant Program for Black Female Entrepreneurs Is Likely Unlawful
The Eleventh Circuit handed down a decision on June 3 overturning the district court’s denial of a preliminary injunction in American Alliance for Equal Rights v. Fearless Fund. In a two-to-one decision, the majority decided in favor of American Alliance for Equal Rights on numerous legal issues that impact diversity, equity, and inclusion strategies.
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04/19/2024 -
US Supreme Court Expands the Scope of Employment Decisions That Can Support Title VII Claims
The US Supreme Court ruled on April 17 that any “disadvantageous” change in the “terms and conditions” of employment that is based on race, gender, or another protected characteristic is actionable under Title VII, even if the disadvantage is not considered significant or material. This expansion of the types of employment decisions that can support a Title VII discrimination claim will require employers to more carefully consider the impact of various employment programs and activities, from job transfers to DEI programs.
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03/12/2024 -
Courts Issue Three Significant DEI Decisions
Last week, three federal courts issued significant decisions impacting the diversity, equity, and inclusion (DEI) legal landscape. Together, the cases demonstrate the rapidly evolving state of the law with respect to DEI.
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03/04/2024 -
2024 Proxy Season: The Importance of Evaluating DEI, ESG, and Corporate Social Responsibility Disclosures
In preparing for both the 2024 proxy season and publication of inaugural or refreshed corporate social responsibility or sustainability reports, as well as in anticipation of final climate disclosure rules from the SEC as of March 6, public companies should consider closely reviewing their policies, procedures, and disclosures related to diversity, equity, and inclusion (DEI) and environmental, social, and governance (ESG) statements and commitments.
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02/29/2024 -
NLRB Extends Protection to Political and Social Justice Displays in the Workplace
The National Labor Relations Board (NLRB or the Board) recently expanded the types of messaging employees are permitted to display in the workplace when it ruled an employee’s Black Lives Matter uniform marking was protected by labor law—and the Board has signaled that even greater expansion may be coming.
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February 2024 -
The Trends—and Traps—That Will Shape 2024
In the run-up of what will be a pivotal election year in the United States and in other global jurisdictions, Morgan Lewis lawyers provide a high-level overview of some major trends and regulatory and legislative developments that are on the horizon.
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08/22/2023 -
New OFCCP Rule Changes Investigative Process—to the Detriment of Contractors
The US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently issued a new final rule that will change how the agency investigates and enforces allegations of discrimination against federal contractors subject to EO 11246. The August 4 rule, which goes into effect on September 5, 2023, largely dismantles the policies established by a 2020 rule, which provided detailed notice and evidentiary standards for the agency’s pre-enforcement and conciliation procedures.
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08/21/2023 -
SBA Makes Major Changes to 8(a) Business Development Program Regarding Social Disadvantage
The US Small Business Administration (SBA) temporarily suspended new application submissions to its 8(a) Business Development program, and it will require many existing participants to explain why they qualify for the program after a district judge in the US District Court for the Eastern District of Tennessee held that the SBA’s use of a “rebuttable presumption” of social disadvantage for certain minority groups in determining eligibility for the program violated a federal contractor’s Fifth Amendment right to equal protection.
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08/21/2023 -
Harvard/UNC Aftermath: How Boards Can Ensure Legal Compliance While Mitigating Litigation Risk
In the wake of the US Supreme Court’s recent decision striking down affirmative action in higher education in Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina (Harvard/UNC), corporations are being swept into a nationwide conflict over diversity, equity, and inclusion (DEI) initiatives. Corporate boards should consider taking preventive measures now to mitigate litigation risk.
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08/09/2023 -
Gender Pay Reporting in the UK in Light of the EU Pay Transparency Directive, International Employment Lawyer
Partner Louise Skinner and associate William Mallin wrote an article for International Employment Lawyer about the UK’s gender pay reporting regime against the backdrop of the EU’s Pay Transparency Directive.
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07/24/2023 -
Hawaii Revised Statutes Amended to Address Pay Transparency and Equal Pay
Hawaii Governor Josh Green recently signed into law a requirement that employers in Hawaii include in job listings information on the expected hourly rate or salary range for positions. The July 3, 2023 law is an amendment to Chapter 378, Part I of the Hawaii Revised Statutes regarding pay transparency and equal pay and is scheduled to go into effect on January 1, 2024. The amended law also modifies Hawaii’s existing equal pay law to provide increased protection for a broader range of protected classes.
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07/17/2023 -
Supreme Court: Antidiscrimination Laws Cannot Compel Businesses to ‘Express’ Messages They Disagree With
The US Supreme Court on June 30 sided with a website designer who claimed the First Amendment shielded her from liability under state civil rights laws for refusing to create wedding websites for same-sex couples.
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07/14/2023 -
EO 11246 Following the Harvard-UNC Supreme Court Cases: Why Federal Contractors Should Stay the Course For Now
The US Supreme Court’s June 29 decision in Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. Harvard University (the Harvard-UNC cases), which will have a significant, immediate effect in higher education, could also have implications beyond the education industry, including for federal contractors covered by Executive Order (EO) 11246, the principal legal authority enforcing development of equal employment opportunity plans and affirmative action programs by qualifying federal contractors.
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06/29/2023 -
US Supreme Court: Affirmative Action in College Admissions Must Come to an End
The US Supreme Court issued a landmark decision on June 29, 2023 regarding challenges to race-conscious admissions programs at Harvard University and the University of North Carolina (UNC). In a 6–3 decision split along ideological lines (the vote was 6–3 in Students for Fair Admissions, Inc. v. University of North Carolina and 6–2 in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College with Justice Jackson recused), the Supreme Court held that Harvard and UNC’s race-conscious admissions policies fail strict scrutiny and thus violate the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
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02/22/2023 -
The French Gender Pay Equality Index: 3 Years On
March 1, 2023 will mark the third year of the general obligation to publish the gender pay equality index in France. As of this date, all companies that have not reached the objective of 75 points out of 100 at the gender pay equality index could be held liable to a financial penalty of up to 1% of the payroll. As such, it is time to make a first assessment of the situation and to consider the next steps for companies that have not succeeded in making the necessary corrections.
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01/20/2023 -
Illinois Department of Labor Adopts Final Equal Pay Act Certification Regulations
Recent final regulations made a series of 2021 amendments to the Illinois Equal Pay Act effective as of December 22, 2022. The amendments generally require private employers with 100 or more employees in the State of Illinois to obtain an “equal pay registration certificate” from the Illinois Department of Labor and expand certain reporting requirements, making the law one of the most far-reaching state equal pay laws in the United States.
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12/01/2022 -
DEI and Reverse Discrimination – A Time for Reflection, Practical Guidance
Partner Larry Turner authored a Practical Guidance article discussing an employer’s effort to address diversity and the resulting claim of reverse discrimination.
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11/01/2022 -
Supreme Court Hears Oral Argument in Challenge to Harvard and UNC Race-Conscious Admission Programs
The US Supreme Court on October 31 debated the legality of race-conscious admission programs used by Harvard University and the University of North Carolina. The decisions in these highly watched cases could have broad consequences for diversity, equity, and inclusion practices in a range of sectors.
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10/24/2022 -
S in ESG for Private Markets, Investment Week
Partners Louise Skinner and William Yonge authored an article for Investment Week about the consideration given to the ‘social’ element of environmental, social, and governance (ESG) by private funds and investors.
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10/14/2022 -
How to Respond to SEC’s Focus on Human Capital Disclosures, Bloomberg Law
Partners Erin Martin and Celia Soehner authored an article for Bloomberg Law outlining ways public companies can prepare for an expected move by the US Securities and Exchange Commission (SEC) to take a closer look at human capital disclosures in public company filings. Erin and Celia note important steps for public companies to take to be responsive to the potential regulatory scrutiny and investor demands.
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07/01/2022 -
ESG Considerations in Europe and Asia: Social Inclusion - The New Diversity Frontier, European Pharmaceutical Review
Partners Lesli Ligorner and Louise Skinner authored an article for European Pharmaceutical Review about environmental, social, and governance issues across Asia and Europe, focusing on social inclusion considerations.
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04/07/2022 -
How to Advance DEI while Being Mindful of Legal Risks, International Employment Lawyer
Morgan Lewis partners Jocelyn Cuttino, Sharon Masling, and Louise Skinner authored an article for International Employment Lawyer on how employers are actively seeking to increase diversity, equity, and inclusion initiatives at their companies without running afoul of global, federal, and state anti-discrimination statutes.
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03/15/2022 -
Florida ‘Stop WOKE’ Bill Could Impact Employers’ Diversity, Equity, and Inclusion Efforts
The Stop WOKE Act prohibits employers from requiring employees to participate in certain types of diversity, equity, and inclusion (DEI) training. The bill was recently passed by the Florida House and Senate; Governor Ron DeSantis is expected to sign it into law shortly.