By Whitney R. Brown, Esq.
Despite Republicans’ tremendously successful 2024 U.S. elections, the change in administration and majority won’t translate to a friendlier litigation climate for employers any time soon.
More minor employment decisions can be challenged. In 2024, the U.S. Supreme Court rejected the premise that applicants or employees had to have experienced a serious and material change in their employment to sue. The Court found that an employment decision could receive judicial scrutiny if it had inflicted only “some harm” relating to “an identifiable term or condition of employment.” In addition to broadening the group of negative employment actions that could be challenged, expect savvy plaintiff’s counsel to pursue actions for denials of positive development opportunities, many of which are informally granted, outside of HR’s watch, and which tend to snowball.
More expensive discovery and more personal discovery. The 11th U.S. Circuit Court of Appeals has embraced the convincing mosaic theory of proving discrimination, which expressly allows plaintiffs to prove discrimination or retaliation with “ambiguous statements” and evidence of “systematically better” treatment of similar employees outside the protected class. The “systematically better” treatment element will give plaintiffs solid ground to argue they are entitled to dig through the personnel files of wide groups of employees by job title, department, or even company-wide. Front-line supervisors already have been deposed about “ambiguous statements” on their social media profiles.
More demands for accommodation. The U.S. Equal Employment Opportunity Commission’s overbroad final regulations implementing the Pregnant Worker Fairness Act laid landmines for employers who haven’t trained every supervisor on what to say and what not to say. And employees haven’t forgotten the lessons of the COVID vaccine wars, as evidenced by the fact that twice as many EEOC charges alleging religious discrimination were filed in FY 2023 as in FY 2021. (I’m excluding FY 2022 because most of the vaccine-challenging charges were filed in this year, creating an unusual spike). But these numbers are still dwarfed by Americans with Disabilities Act claims. In 2023, 29,160 EEOC charges were filed with an ADA claim , up from 25,004 in FY 2022, and 22,843 in FY 2021. There are more ADA charges filed in each of the past three years than any other single type of charge (excluding retaliation, which can originate under any of the several laws the EEOC enforces). One reason all types of denial of accommodation claims continue to grow is that too many untrained managers deny requests for accommodation because, “if I do it for you, I’ll have to do it for everyone.”
Immediate change at the National Labor Relations Board. President-elect Trump will start his term with two open positions to fill at the NLRB and one sitting Republican member, so he should be able to quickly establish a Republican majority. A Republican majority would likely overturn the Cemex decision concerning union recognition and election procedures, and other slightly less radical positions taken by the NLRB during the Biden presidency, like the McLaren-Macomb debacle (severance agreements).
EEOC will remain under a Democratic majority until 2026. President Trump won’t get the Commission flipped to a majority of Republican members until August 2026. Once a Republican majority is established, many expect regulations or guidance policing DEI programs and training, like President Trump’s Executive Order 13950, which he signed in September 2020 to prohibit certain types of DEI training. (The order was enjoined by a court and revoked by President Biden in January 2021).
👉 Whitney Brown is a shareholder with Lehr Middlebrooks Vreeland & Thompson PC. The Birmingham labor and employment law firm provides information for Alabama Retail’s Employment Law Resource Center.
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