Complying with Students for Fair Admissions: Initial Responses by Institutions and Agencies

Following the U.S. Supreme Court ruling in Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina, institutions seeking to admit diverse student bodies may need to review and ultimately revise their policies and practices in order to achieve that goal through appropriate means.

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Complying with Students for Fair Admissions: U.S. Departments of Education and Justice Issue Joint Guidance for Institutions

On August 14, 2023, the U.S. Department of Education (ED) and the Department of Justice (DOJ) jointly issued guidance to help postsecondary schools comply with the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al. (together, SFFA). The SFFA decision held that race-conscious admissions policies violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. While the departments’ guidance provides institutions with suggested approaches for supporting student body diversity, it also leaves open other important questions, including the funding and use of race-conscious scholarships and other financial assistance.

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NLRB Adds Enhanced Penalties for Repeat Offenders

On April 20, 2023, the National Labor Relations Board (NLRB or the Board) added a new set of penalties to its remedial arsenal for employers who repeatedly or egregiously violate federal labor law. The new remedies supplement the expanded make-whole remedies and consequential damages established by the Board in its December 13, 2022, decision, Thryve, Inc.

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New York Artificial Intelligence Employment Law Delayed

The New York City Department of Consumer and Worker Protection (DCWP) announced that it will not start enforcing the law regulating automated employment decision tools until at least April 15, 2023. Local Law 144 of 2021 was scheduled to take effect January 1, but the DCWP attributed the delayed enforcement of the law to the high volume of public comments it received addressing its proposed regulations to implement the law. This law is the very first law within the United States squarely and comprehensively addressing the use of AI in making employment decisions. The law requires that before an employer uses an “automated employment decision tool” (AEDT, which is basically AI) that it conduct a bias audit within a year of using the tool, and that certain notices be given to candidates who may be subject to the AEDT, with an option to opt out of the AEDT process.

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No More Non-Disclosure and Non-Disparagement Clauses in Pre-Dispute Agreements Involving Sexual Harassment and Sexual Assault

On December 9, 2022, President Biden signed the “Speak Out Act” (the Act). The Act follows the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which made pre-dispute arbitration agreements for sexual assault and sexual harassment claims invalid and unenforceable. The Act is similar to laws passed in California, Illinois, New Jersey, and New York in response to the #MeToo Movement. The Act became effective upon the President’s signature.

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Employers, There is a New EEOC Workplace Poster and You Should Post it Immediately

On October 20, 2022, the Equal Employment Opportunity Commission (EEOC) released a new “Know Your Rights” poster, which replaces the former “EEOC is the Law” poster.

EEOC Chair Charlotte Burrows described the new poster as a “win-win for employers and workers… making it easier for employers to understand their legal responsibilities and for workers to understand their legal rights.”

Similar to the old poster, the new poster summarizes the federal anti-discrimination laws enforced by the EEOC:

  • Title VII of the Civil Rights Act;
  • The Americans with Disabilities Act;
  • The Equal Pay Act;
  • The Age Discrimination in Employment Act; and
  • The Genetic Information and Nondiscrimination Act.

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