Category Archives: Title VII

EEOC Shifts Away from Disparate Impact Enforcement

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The Equal Employment Opportunity Commission (“EEOC”) is moving forward with a significant shift in workplace discrimination enforcement. By September 30, 2025, the agency seeks to administratively close all pending charges based solely on disparate impact theory, issuing “right to sue” letters that will send these cases directly into federal court. This move follows an April executive order, which instructed federal agencies to halt disparate impact enforcement “to the maximum extent possible.”  The EEOC frames the move as a broader realignment of federal enforcement priorities away from impact‑based theories and toward intentional discrimination. 

For those unfamiliar with the legal landscape, “disparate impact” addresses policies that appear neutral but disproportionately harm protected groups, such as hiring practices that screen out minority candidates, unnecessary degree requirements, or criminal background checks. Unlike disparate treatment cases that require proof of intentional discrimination, disparate impact claims focus on statistical patterns of harm.

The change in EEOC enforcement practices does not eliminate the disparate impact legal theory rooted in Griggs v. Duke Power and the Civil Rights Act amendments of 1991. However, the practical consequences are diverse. Traditionally, a plaintiff might benefit from administrative investigations that yield discoverable business records and vet employer defenses. With employers less likely to be subject to EEOC investigations and data gathering, cases will have to move abruptly into federal court, where plaintiffs must now shoulder the full burden of discovery and proof. Alternatively, the burden of investigation could fall upon comparable state agencies in jurisdictions that provide overlapping state remedies.

Nevertheless, Employers should not treat the EEOC directive as a license to cut compliance corners. They should continue to maintain and document disparate-impact analyses, job-relatedness defenses and validation studies for tests and standards. Administrative closure does not immunize against private suits or state enforcement.

Virginia Employment Lawyer

The Introduction of AI Into the Hiring Process

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From initial job postings to final hiring decisions, AI-driven tools are reshaping how companies evaluate and select employees. While these technologies promise unprecedented efficiency, they also introduce a complex web of legal and ethical challenges, chief among them the risk of algorithmic bias and discrimination.  The question is not whether AI can discriminate, but how to prevent it from doing so.

The legal theory of “disparate impact” is particularly relevant to AI hiring systems. Under this doctrine, employers can be held liable for discrimination even if they didn’t intend to discriminate, provided their practices have a disproportionate negative effect on protected groups. This means that an AI system that consistently screens out candidates from certain ages, genders, racial or ethnic groups could violate federal law, regardless of whether the algorithm explicitly considers those factors.  For example, AI may identify and use seemingly neutral data points that are, in fact, proxies for protected characteristics. A candidate’s zip code could be a proxy for their race or national origin.  Gaps in employment history, which can be a proxy for gender, may also be unfairly penalized. Because AI models “learn” from the data they are trained on, if that data reflects historical or societal biases, AI potentially can learn and perpetuate those same biases.

Employers are responsible for the outcomes of their hiring practices, regardless of whether those decisions are made by a human or an algorithm. The EEOC has issued guidance emphasizing that AI selection tools must not result in “disparate impact,” which occurs when a neutral policy or practice disproportionately disadvantages a protected group. The EEOC treats algorithmic tools as selection procedures” under Title VII, expects adverse impact monitoring and warns that employers can remain liable even when vendors design/administer the tool. The EEOC’s position is clear: an employer cannot evade liability by outsourcing their selection procedures.

A growing number of jurisdictions are enacting specific regulations for AI in employment. New York City’s law, for example, requires employers to conduct an independent bias audit of any automated employment decision tools. States like Illinois and Colorado have also passed laws requiring employers to prevent algorithmic discrimination and provide notice to applicants when using AI. Recent court decisions also establish that AI vendors can be held liable as “agents” of employers, representing a fundamental shift in liability. In Mobley v. Workday, a federal court allowed collective action to proceed based on allegations that a software company’s AI screening tools caused disparate impact against applicants 40 and older, and recognizing potential vendor liability under an employer “agent” theory.

Strategies for Employers

Given the significant legal risks, employers must be proactive in their use of AI. Here are critical steps to take:

  1. Conduct a Disparate Impact/Bias Audits: Before deploying any AI tool and on an ongoing basis, regularly audit its outcomes to ensure it is not disproportionately screening out protected groups. If a disparate impact is found, the tool must either be revised or validated as job-related and consistent with business necessity.
  2. Maintain Human Oversight: AI should be a tool to augment, not replace, human decision-making. Ensure that a human is “in the loop” and can review and override any automated decisions.
  3. Vet Your Vendors: Employers cannot escape liability by outsourcing. Before purchasing an AI tool, demand transparency from the vendor regarding their bias testing, data sources, and the algorithm’s decision-making process. Include contractual protections that hold vendors accountable for discriminatory outcomes.
  4. Provide Reasonable Accommodations: Ensure AI tools are accessible and offer alternative assessment methods for candidates with disabilities, as required by the ADA.
  5. Be Transparent with Candidates: Inform applicants and employees when AI is being used in the hiring process and explain how it will affect them.
  6. Develop Clear Policies: Establish clear internal policies on the ethical and legal use of AI in hiring and provide training to HR staff and managers on how to use these tools responsibly and identify potential bias.

The integration of AI into hiring processes represents a transitional moment in employment law and practice. The technology that was intended to eliminate human bias potentially creates new forms of systematic discrimination. Courts continue to apply traditional anti-discrimination principles to AI-powered hiring decisions, and the legal trajectory clearly favors expanded liability rather than reduced oversight. For employers, the path forward requires a fundamental shift in thinking about AI hiring tools. Rather than viewing them as neutral technological solutions, they must be understood as powerful systems that require active management.

A New Standard for Workplace Discrimination after Muldrow v. City of St. Louis

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Muldrow v. City of St. Louis, 601 U.S. 346 (2024), resets the bar for Title VII discrimination claims. The plaintiff, a police sergeant, alleged an involuntary transfer replaced her with a male officer and imposed less desirable duties, schedule changes, and loss of job privileges, though rank and pay stayed constant. The Eighth Circuit affirmed dismissal under a “material employment disadvantage” test, which the Supreme Court rejected as inconsistent with Title VII’s text and structure. The Supreme Court’s opinion resolves a long-standing circuit split over whether Title VII requires “significant” harm for discrimination claims that do not involve economic losses or formal demotions

In a unanimous decision, the Court held that an employee alleging a discriminatory transfer “must show some harm with respect to an identifiable term or condition of employment,” but that such harm “need not be significant” to violate Title VII. The Court rejected circuit rules demanding a “material employment disadvantage” or other heightened adversity showing, explaining that importing a significance test adds words that Congress did not enact into Title VII’s prohibition on discrimination “with respect to compensation, terms, conditions, or privileges of employment”.

Core standard clarified

Title VII plaintiffs must prove discriminatory treatment and a resulting identifiable injury to the job’s terms, conditions, or privileges, but the injury need only be some harm rather than a heightened “significant” or “material” harm. The Court emphasized that discrimination means being made worse off because of a protected characteristic, and nothing in the statute scales how much worse off one must be; requiring “significance” imposes hurdles contrary to the statute’s plain language.

What counts as “some harm”

The decision requires a tangible, job-related detriment—changes to duties, schedules, prestige, responsibilities, or privileges can qualify if they concretely alter terms or conditions. In Muldrow, the alleged harms included loss of specialized responsibilities and prestige, schedule changes, and loss of an unmarked take-home vehicle, illustrating how non-pay consequences can meet the threshold when tied to job terms or conditions. The Court did not catalog every qualifying harm or define “some” with precision, leaving lower courts to apply the standard case by case.

Broader implications

By lowering the degree-of-harm threshold, the Court made it easier for discrimination claims based on transfers to proceed past pleading and summary judgment, particularly where prior circuit precedent demanded “material” adversity. The ruling is not confined to transfers; its reasoning applies across Title VII discrimination claims so long as the plaintiff shows some injury to identifiable terms or conditions of employment caused by protected-class discrimination. The decision still may leave intact separate, higher adversity standards in retaliation cases, which many courts continue to frame as requiring “materially adverse” actions in that distinct context.

Supreme Court Lowers Bar for “Reverse Discrimination” Lawsuits

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In today’s (6/5/2025) Ames v. Ohio Dept. of Youth Srvcs. ruling, the U.S. Supreme Court’s unanimously made it easier for individuals from majority groups to bring workplace discrimination claims, often referred to as “reverse discrimination” lawsuits. The ruling involves a woman who alleged she was denied a promotion and later demoted because of her sexual orientation. The plaintiff argued that these decisions were motivated by bias against her as a heterosexual woman and that her employer favored LGBTQ employees. Previously, lower court had required members of a majority group to show not only the standard elements of a discrimination claim under Title VII of the Civil Rights Act of 1964, but also to provide additional evidence—so-called “background circumstances”—suggesting her employer was unusually likely to discriminate against majority group members. The Supreme Court concluded that the evidentiary standard for discrimination claims should be uniform, regardless of the claimant’s identity.

It’s important to note that the Supreme Court did not rule on whether Ames actually suffered discrimination. Instead, the justices focused solely on the legal standard required to bring such a case to trial. Ames’s lawsuit now returns to the lower courts for further proceedings under the new, less stringent standard.

Are Managers that Investigate Discrimination Protected From Retaliation?

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In addition to prohibiting job discrimination on the basis of  race, color, religion, sex, or national origin, Title VII contains an Opposition Clause to protect workers from retaliation for advancing claims under the statute.   Typically, the Courts have defined “opposition” broadly to include a  variety of conduct in opposition to unlawful employment practices, including both formal grievances and informal complaints.  In Demasters v. Carilion Clinic,  the Fourth Circuit recently considered whether a manager, who failed to support a pro-management position in another employee’s sexual harassment complaint, himself engaged in protected opposition under Title VII.

At issue in DeMasters is the proper application of the “manager rule,” a doctrine applied by some courts that requires an employee to be acting outside of a management role in order to engage in protected activity.  When applied, managers that routinely accept, investigate or evaluate complaints of other employees are not participating in protected activity when performing their regular job duties.  After consideration, however, the Fourth Circuit rejected a per se extension of the “managers rule” to Title VII, holding that “the only qualification placed upon an employee’s invocation of protection from retaliation under Title VII’s Opposition Clause is that the manner his opposition must be reasonable.”

Demasters v. Carilion Clinic (Fourth Circuit, August 10, 2015)

Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases

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Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin.   The standard for liability often begins with the employment position of the alleged harasser.  When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive harassing behavior and failed to take remedial action.  Additionally, an employer can defend a claim by proving that an employee failed to utilize available corrective measures such as an internal HR complaint procedure.

However, when the alleged harasser is a supervisor, the standard for liability changes if the supervisor takes a tangible, adverse action against an employee.  In such cases, an employer may be vicariously liable for the conduct of its supervisors.  In Vance v. Ball St. University (April 2013), the U.S. Supreme Court provides clarification regarding the very definition of a supervisor under Title VII.    In a 5-4 decision, Vance holds that an employee is a supervisor “if he or she is empowered by the employer to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”   Inversely stated, a supervisor is not someone who merely has some nebulous authority to instruct or direct another person in the performance of their duties.