Before the Supreme Court’s ruling in Students for Fair Admissions vs. Harvard, four Fortune 150 companies were sued over their diversity, equity and inclusion, and environmental, social and governance practices. This alert provides an update on those cases.
Since the U.S. Supreme Court’s decision in Students for Fair Admissions vs. Harvard, the American Alliance for Equal Rights has now sued two large law firms for alleged violations of Section 1981 of the Civil Rights Act of 1866 over their fellowship programs offered to law students. Despite the Alliance’s complaints referencing gender, LGTBQ+ status and/or disability, the claims are limited to Section 1981 which addresses only racial discrimination in the fellowship programs.
Sens. Bob Casey (D-PA) and Brian Schatz (D-HI) have recently introduced the No Robot Bosses Act (the Bill) to the Senate in an effort to regulate employers’ use of automated decision systems in the workplace. The Bill covers past and present candidates for employment as well as workers “performing work for remuneration.” This broad definition is of particular importance as many employers use AI to sift through past applications to solicit reapplications if a new position opens up.
The American First Legal Foundation and other organizations like it, have taken the position that all diversity, equity and inclusion programs are illegal since the Students for Fair Admissions Inc. decision from the U.S. Supreme Court. The groups have already filed actions against several companies for polices that include goals for the placement of people of color and women in leadership and leadership pipeline positions to match community demographics by a certain year; employee training and apprenticeship programs focused on underrepresented groups; and quantitative representation metrics for leadership incorporated into annual incentive compensation awards for senior leadership.
The EEOC releases a technical assistance document exploring employers’ Title VII liability when incorporating AI tools and automated systems in employment selection procedures, and a new Texas district court rule prevents attorneys’ unchecked use of AI in preparing legal documents — we’re exploring these developments and the latest insurance regulatory news from California and Colorado in our briefing.
On December 21, 2022, Governor Kathy Hochul signed Senate Bill S9427A (the NY Law), which requires covered employers to include salary or wage range—and the job description—in job postings. The NY Law will go into effect on September 17, 2023. New York joins a growing trend of wage transparency efforts by a number of states, counties and cities as a way to close the wage gap for women and workers of color. With New York, approximately 20 percent of the American population will live or work in a state requiring pay transparency.