Category: Compliance/Legal Issues

  • HR and the Courts — April 2025

    HR and the Courts — April 2025

    by CUPA-HR | April 15, 2025

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    NCAA and Critics Clash Over Proposed $2.8 Billion Settlement of Class Action College Athlete NIL Antitrust Settlement

    The proposed NCAA $2.8 billion settlement of the challenge to the NCAA’s past refusal to allow payment to college athletes for their name, image and likeness (NIL) was criticized in open federal court in California on April 7, 2025 (In re College Athlete NIL Litigation (N.D. Cal. No. 40:20-cv-03919)).

    The federal district court judge held an open hearing to consider the proposed settlement to include college athletes participating in Division I athletics from 2016 to the present. The proposed settlement would pay the athletes a total of $2.8 billion over a 10-year period. Participating colleges would share up to 22 percent of their annual athletic department revenue with athletes, which would be capped at $20 million for the 2025-26 academic year and increase from there in the future. The judge expressed concern over future athletes being bound by a 10-year agreement that they did not negotiate. We will follow future developments in this case as they unfold.

    Volunteer Baseball Coaches Settle $49.3 Million Antitrust Case With NCAA – Separate Case for Other Division I Volunteer Coaches Continues

    A class of former Division I volunteer baseball coaches have reached a proposed settlement of their antitrust claim against the NCAA for a proposed $49.3 million, which must be approved by the federal court handling the litigation (Smart v. NCAA (E.D. Cal. No. 2:22-cv-02125, 3/24/25)). The volunteer coaches argued that the NCAA enforced unfair anti-competitive rules which forced them to work for nothing while they often performed the same duties as paid coaches and worked more than 40 hours per week. The baseball coaches in this case included a class of 1,000 people who worked as volunteer baseball coaches in Division I from Nov. 29, 2018, to July 1, 2023.

    Under the proposed settlement, each class member would receive $36,000 for each year coached during the period. A hearing on this settlement will take place on April 28, 2025.

    A separate class action was recently certified and will move forward independently on behalf of 1,000 Division I, non-baseball coaches (Colon v. NCAA (E.D. Cal. No. 1:23-cv-00245, 3/11/25)). We will report on developments in this case as they unfold.

    Federal Court Rules for University and Rejects Claim That Anti-Racism Training Created a Hostile Work Environment – Professor’s Claim Dismissed on Summary Judgment

    A federal district court judge, who had previously denied Pennsylvania State University’s motion to dismiss hostile work environment claims related to anti-racism training and subsequent “negative” workplace comments, granted the university’s motion for summary judgment on the professor’s claims. The professor claimed that job-related anti-racism trainings and later discussions regarding anti-racism and White privilege made his work environment unlawfully hostile. The judge concluded that 12 alleged incidents over three and a half years of employment were not frequent enough to be pervasive under federal or state law (De Piero v. Pennsylvania State University (2025 BL 73228, E.D. Pa., No. 2:23-cv-02281, 3/6/25)).

    The plaintiff professor claimed that he was exposed to discriminatory comments and a hostile work environment during scholarly discussions, a campus-wide town hall meeting, a professional development meeting, and a guest lecture presentation. The plaintiff also alleged that he voiced discomfort with statements such as, “White teachers are a problem.” The judge noted that the professor was assured by an affirmative action officer that the statements were not an attack on him personally, that he does not “carry the burden” of the White race, and that he is not responsible for what White people have or have not done.

    Finally, the judge rejected the professor’s argument that this case would have been treated differently if the topic involved deriding Black people or Black privilege. The judge concluded that the 3rd Circuit precedent includes cases in which “equally offensive comments directed at Black employees have been found to be insufficiently pervasive.”

    Court of Appeals Reverses Federal Court Injunction Precluding Enforcing the Trump Administration Executive Order Ban on DEI Subject to Its Decision on Constitutionality

    The 4th Circuit Court of Appeals reversed a federal district court judge’s injunction precluding enforcement of the Trump administration executive orders banning DEI. The judge had issued the injunction, concluding that it was likely that the plaintiffs, the National Association of Diversity Officers in Higher Education, would prevail on their claim that the executive orders violated the First Amendment by chilling free speech rights without due process (National Association of Diversity Officers v. Trump (D. Md, No.21-cv-333, 3/10/25)).

    The initial injunction was issued on Feb. 21, 2025, and appealed by the Trump administration. The Court of Appeals stayed the injunction on March 14, 2025. The executive orders now remain enforceable subject ultimately to the Court of Appeals and possibly Supreme Court decisions on constitutionality.

    EEOC and DOJ Publish Guidance About DEI Plans and Discrimination

    On March 19, 2025, the EEOC and the U.S. Department of Justice (DOJ) published two technical assistance documents aimed at “unlawful discrimination” in workplace DEI programs. The first document is a short primer entitled, “What to Do If You Experience Discrimination Related to DEI at Work.” It describes the process of filing a discrimination claim under the Civil Rights Act and examples of actions that could be grounds for filing such charges.

    The second document is an FAQ entitled, “What You Should Know About DEI-Related Discrimination at Work.” One of the Q&As explains the circumstances under which DEI could be unlawful.

    Court Rejects Professor’s First Amendment Claim After Revised Lawsuit Fails to Address Earlier Dismissal Over Gender Slurs in Class

    A San Diego State University philosophy professor, who was suspended without pay following student complaints that he used gender-based slurs in his philosophy class in a way “unrelated” to his teaching, had his amended complaint dismissed. The federal district court judge in California concluded that the amended complaint did not satisfy the court’s original dismissal based on the conclusion that the slurs were unrelated to his teaching (Corlett v. Tong (2025 BL 110938 S.D. Cal. 4/1/25)). The professor had, prior to this incident, been reassigned classes following complaints that he used a race-based slur in another class.

    The professor claimed that he used the language in his philosophy class as a way to demonstrate to students that terms can have multiple meanings. His claims were dismissed by the court, citing a four-page comprehensive investigator report received by the university prior to imposing the suspension, which concluded that the “slurs” were inappropriate and also violated the California Education Code. The court concluded that his amended complaint did not establish a basis to conclude that the university’s reliance on the independent investigator’s report was unreasonable.

    Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.



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  • House Education and Workforce Committee Holds Hearing on NLRB and Student Athletes

    House Education and Workforce Committee Holds Hearing on NLRB and Student Athletes

    by CUPA-HR | April 10, 2025

    On April 8, the House Education and Workforce Committee held a hearing titled, “Game Changer: The NLRB, Student-Athletes, and the Future of College Sports.” The hearing focused on the employment classification status of student athletes at institutions of higher education.

    The witnesses at the hearing included Daniel L. Nash, shareholder at Littler; Morgyn Wynne, former softball student athlete at Oklahoma State University; Ramogi Huma, executive director at the National College Players Association; and Jacqie McWilliams Parker, commissioner at the Central Intercollegiate Athletic Association.

    Majority Concerns with Employee Classification

    Republican committee members argued that the classification of student athletes as employees could alter college athletics to the detriment of institutions and student athletes alike. Confirmed by witness testimony, the majority discussed that employee classification for and unionization by student athletes could trigger unintended consequences for the athletes, such as fewer benefits, losing scholarships based on poor performance, having scholarships taxed as taxable income, and losing training support, mental health services, and media and career support. Further, they highlighted that employee classification could strain athletic department resources; McWilliams Parker stated that athletic departments would need to consider whether they could continue to sustain certain sports and provide scholarships to students.

    The majority also discussed the legislative and regulatory landscape surrounding this issue. In his opening statement, Chair Rick Allen (R-GA) discussed the memo from former General Counsel of the National Labor Relations Board (NLRB) Jennifer Abruzzo regarding the Biden-era NLRB’s position that student athletes are employees and are afforded statutory protections under the National Labor Relations Act (NLRA). Notably, the memo has since been revoked by the Trump administration’s acting general counsel at the NLRB. Further, in response to questioning from the chair of the full committee, Tim Walberg (R-MI), Nash clarified that existing labor laws are clear that revenue received by an organization is not a factor in determining employee status.

    Representative Lisa McClain (R-MI) also discussed her bill, the Protecting Student Athletes Economic Freedom Act, which would codify into law that student athletes are not employees of institutions, athletic conferences or athletic associations, as a solution to the majority’s concerns.

    Minority Argue for Greater Protections for Student Athletes

    Committee Democrats argued that student athletes require greater protection from exploitation. They argued that student athletes generate revenue for their institutions of higher education, conferences and the National Collegiate Athletic Association (NCAA), but fail to be compensated for their work and the amount of time they commit to their team. The members claimed that classifying student athletes as employees and allowing those athletes to collectively bargain would end the exploitation. Huma’s testimony supported committee Democrats advocating that student athletes should be equally able to benefit financially from the revenue they generate.

    CUPA-HR will monitor for future developments on the status of student athletes as discussed during this hearing and keep members apprised of significant policy updates.



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  • USCIS Announces Guidance on Social Media Screening for Immigration Benefit Requests

    USCIS Announces Guidance on Social Media Screening for Immigration Benefit Requests

    by CUPA-HR | April 9, 2025

    On April 9, the U.S. Citizenship and Immigration Services (USCIS) announced that it will begin considering “aliens’ antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying immigration benefit requests.” According to the announcement, the guidance is effective immediately and impacts individuals applying for lawful permanent resident status, foreign students, and “aliens affiliated with educational institutions” linked to antisemitic activity.

    Under the new guidance, USCIS will look at social media content that indicates a requestor “endorsing, espousing, promoting, or supporting antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefit requests.” The announcement states that DHS and USCIS aim to enforce all relevant immigration laws to the maximum degree, consistent with President Trump’s executive orders on combatting antisemitism and national security controls to protect against foreign terrorists.

    In early March, USCIS published a proposal to collect social media information on applications for immigration-related benefits. USCIS claimed that such collection of information was necessary to comply with Trump’s national security executive order discussed above. The comment period for this information collection proposal is still open. The comment period closes May 5.

    CUPA-HR continues to monitor for updates on immigration policy changes that could potentially impact student and nonimmigrant work visas used by the higher education community.



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  • CUPA-HR Joins Higher Education Letter Seeking Additional Information on International Students

    CUPA-HR Joins Higher Education Letter Seeking Additional Information on International Students

    by CUPA-HR | April 8, 2025

    On April 4, CUPA-HR joined the American Council on Education and 14 other higher education associations on a letter to Department of State (DoS) Secretary Marco Rubio and Department of Homeland Security (DHS) Secretary Kristi Noem seeking additional information on the agencies’ policy and planned actions for international students and scholars.

    The letter states that additional clarity is sought after reports that student visas are being revoked without additional information being shared with institutions where those students attend. According to the letter, such reports include messages to international students about their visas being revoked and requesting that they self-deport without providing additional information about the process to appeal such decisions. The letter argues that these actions hinder institutions’ ability to best advise their international students and scholars on what is happening.

    In order to provide more clarity to institutions, the higher education associations request that DoS and DHS schedule a briefing with the impacted community to better understand the actions being taken by the agencies. The briefings could provide the opportunity to understand the administration’s actions in this space and to allow the higher education community to better understand how they can best help address issues of national security.

    CUPA-HR will share any updates from these agencies related to the international student and scholar news and requests set forth in this letter.



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  • CUPA-HR Joins Amicus Brief in Case Regarding NCAA Eligibility Rules

    CUPA-HR Joins Amicus Brief in Case Regarding NCAA Eligibility Rules

    by CUPA-HR | April 8, 2025

    On March 28, CUPA-HR joined the American Council on Education and other higher education associations in filing an amicus brief in Pavia v. NCAA, which challenges the association’s eligibility rules with respect to the five-year time limits for student-athletes. The brief was filed with the United States Court of Appeals for the 6th Circuit.

    Background

    Pavia filed the lawsuit against the NCAA in November 2024, claiming that the NCAA’s ability to limit eligibility for previous junior college transfers by counting their competition years in junior college towards the number of years they are eligible to compete in NCAA sports restrains labor market forces and thus violates antitrust laws. A federal district court judge agreed on the merits of Pavia’s arguments and issued a preliminary injunction blocking the NCAA from enforcing its eligibility rules and allowing Pavia only to play an additional season. The judge argued that the ability for student-athletes to earn money through name, image and likeness (NIL) deals thus makes the NCAA’s eligibility rules “commercial,” meaning the rules themselves would not survive antitrust scrutiny. The NCAA appealed this ruling to the 6th Circuit Court of Appeals, where the case awaits further litigation.

    Amicus Brief

    The brief, filed by ACE, CUPA-HR, and five other higher education associations, argues that all eligibility rules set by the NCAA, including the five-year time limitations challenged in this case, aim to ensure “the primacy of the educational context for the student-athlete experience.” The brief argues that the preliminary injunction placed by the district court threatens to “shift the formulation and enforcement of the NCAA’s eligibility rules from educators and athletics administrators to federal courts” as any student-athlete disqualified by an eligibility rule could request a court to file an injunction and argue that the eligibility rule restricts their ability to pursue NIL deals. This would ultimately result in a patchwork of waivers granted by judges nationwide, undermining the national system of enforcement already in place through athletic associations like the NCAA and cementing federal judges as the unofficial court of appeals for the NCAA.

    CUPA-HR will continue to monitor for updates related to this court case.



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  • USCIS Updates Form I-9 Language

    USCIS Updates Form I-9 Language

    by CUPA-HR | April 8, 2025

    On April 2, the U.S. Citizenship and Immigration Services (USCIS) announced minor changes to the Form I-9 to align with statutory language. The changes update language in the document that was included in previous editions of the Form I-9 released under the Biden administration.

    The new Form I-9 changes the language in Section 1, checkbox 4 from “A noncitizen authorized to work” to “an alien authorized to work” (italicized for emphasis). Additionally, USCIS announced that E-Verify and E-Verify+ have updated the Citizenship Status selection during case creation. Specifically, the selection “a noncitizen authorized to work” is updated to “an alien authorized to work.” In previous editions of the Form I-9 and in the E-Verify case creation process, the Biden administration’s USCIS changed the language from “alien” to “noncitizen” in this checkbox to align with an internal memo issued by the administration in April 2021 aiming to change the language used by agencies when talking about immigrants.

    The new Form I-9 from the Trump administration also updates the descriptions of the documents accepted under List B to say “sex” instead of “gender.” This change aligns with another April 2 announcement from USCIS about updates to its Policy Manual to clarify that the agency will only recognize two biological sexes, male and female, consistent with the Trump administration’s executive order, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” In the USCIS announcement on sex, the agency states that it would not deny benefits “solely because the benefit requestor did not properly indicate his or her sex” but that the agency would not issue documents with a blank sex field or with a sex different from the sex assigned at birth.

    The new Form I-9 from the Trump administration, known as the January 20, 2025, edition, is valid through May 31, 2027. Previous editions of the Form I-9 that include language from the Biden administration are still valid as well, including two editions from August 1, 2023, that have expiration dates on July 31, 2026, and May 31, 2027. Employers may continue to use the previous Form I-9 editions through their expiration dates; however, employers using the August 1, 2023, edition with the July 2026 expiration date in an electronic system are required to update their system with the Form I-9 expiring in May 2027 by July 31, 2026.

    CUPA-HR will continue to monitor for updates related to the Form I-9 and E-Verify.



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  • House Education and Workforce Committee Holds Hearing on FLSA Modernization

    House Education and Workforce Committee Holds Hearing on FLSA Modernization

    by CUPA-HR | March 27, 2025

    On March 25, the House Education and Workforce Subcommittee on Workforce Protections held a hearing titled “The Future of Wage Laws: Assessing the FLSA’s Effectiveness, Challenges, and Opportunities.” The hearing focused on several bills aimed at modernizing the Fair Labor Standards Act (FLSA), including legislation to amend overtime pay requirements on compensatory time and regular rate of pay and to provide clarity on independent contractor status under the FLSA.

    The witnesses at the hearing included Tammy McCutchen, senior affiliate at Resolution Economics; Paige Boughan, senior vice president and director of human resources at Farmers and Merchants Banks (on behalf of the Society for Human Resource Management); Andrew Stettner, director of economy and jobs at the Century Foundation; and Jonathan Wolfson, chief legal officer and policy director at Cicero Institute.

    Compensatory Time

    Committee members and witnesses discussed the Working Families Flexibility Act, which would allow private sector employers, including private institutions, to offer employees the choice of compensatory time or cash wages for overtime hours worked. Currently, the FLSA only allows for employees working for the public sector, including public institutions, to choose compensatory time or cash compensation for overtime hours worked.

    Chair of the Education and Workforce Committee Tim Walburg (R-MI) expressed his support for a bill like the Working Families Flexibility Act, as it would allow employees to choose which form of compensation best suits their needs. On the other side of the aisle, Rep. Mark Takano (D-CA) argued that offering compensatory time is an attempt to force workers to work more hours for free.

    CUPA-HR submitted a letter for the record prior to the hearing in support of the Working Families Flexibility Act. The letter highlights our past support for the legislation as introduced in previous Congresses. It also draws from CUPA-HR President and CEO Andy Brantley’s testimony for a 2013 Workforce Protections Subcommittee hearing in support of compensatory time. In his testimony, he provided examples of instances where employees benefited from the option of such overtime compensation, which he witnessed while working as an HR leader at a large public university.

    Regular Rate

    The hearing also discussed the Empowering Employer Child and Elder Care Solutions Act, which would exclude the value of employer-funded child or dependent care benefits from the regular rate calculation. The FLSA requires that overtime hours are paid at one-and-one-half times the employee’s regular rate of pay, which is an average hourly rate that includes certain types of compensation.

    During the hearing, Rep. Mark Messmer (R-IN) argued that the regular rate calculation that is currently used to determine overtime pay discourages employers from offering certain benefits. McCutcheon stated that legislation like the Empowering Employer Child and Elder Care Solutions Act would encourage employers to offer more benefits as they would no longer face burdensome overtime pay calculations.

    Independent Contractor Status

    During the hearing, committee members and witnesses also discussed the Modern Worker Empowerment Act (H.R. 1319), which would establish a new standard for defining an employee and an independent contractor under the FLSA. Specifically, the legislation would implement language that states workers are employees if the employer controls what work will be done and how it will be done, and workers are independent contractors if the entity under which the worker works does not exercise significant control over how the work is performed, among other things.

    Rep. Kevin Kiley (R-CA), who introduced the bill in early February, stated that the Modern Worker Empowerment Act was needed to ensure protections for independent contractors in the FLSA. Wolfson pointed to a 2019 California law, AB 5, which implemented an “ABC” test for worker classification and stated that businesses stopped working with freelancers as a result of the law. McCutcheon explained that the Modern Worker Empowerment Act provides clarity when determining worker classification status by focusing on who controls the work being done, unlike California’s ABC test which she claimed was too complicated.

    Ranking Member of the Education and Workforce Committee Bobby Scott (D-VA) opposed the Modern Worker Empowerment Act, claiming that workers do not want to be independent contractors and that employers force workers to accept independent contractor status, thus saving employers money.

    The House Education and Workforce Committee will continue to consider these bills as they are reintroduced and marked up during the 119th Congress. CUPA-HR will monitor for future developments on the bills discussed during this hearing and keep members apprised of significant updates.



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  • Trump Signs Executive Order Directing Closure of the Department of Education

    Trump Signs Executive Order Directing Closure of the Department of Education

    by CUPA-HR | March 20, 2025

    On March 20, President Trump signed an executive order titled “Improving Education Outcomes by Empowering Parents, States, and Communities.” The order directs the secretary of education to “take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.”

    The order additionally states that the secretary of education “shall ensure that the allocation of any Federal Department of Education funds is subject to rigorous compliance with Federal law and Administration policy.” According to the order, this includes compliance with federal requirements to terminate “illegal discrimination obscured under the label ‘diversity, equity, and inclusion’” and to terminate programs that promote gender ideology.

    With respect to higher education, the executive order asserts that closure of the ED “would drastically improve program implementation.” It specifically discusses ED’s role in managing the federal student loan debt portfolio, and it claims that ED “is not a bank, and it must return bank functions to an entity equipped to serve America’s students.”

    It is still unknown how Secretary McMahon will execute this order. Despite Trump’s clear intentions to close ED, Congress would still need to pass legislation to officially dissolve the department. It remains to be seen whether McMahon and the Trump administration will move ED’s subagencies and their functions to other federal agencies as speculated.

    More information is needed from ED to understand how this order will be implemented. CUPA-HR will continue to monitor for additional news and guidance from ED as it relates to the order.



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  • EEOC and DOJ Issue Technical Assistance Documents on Unlawful DEI-Related Discrimination

    EEOC and DOJ Issue Technical Assistance Documents on Unlawful DEI-Related Discrimination

    by CUPA-HR | March 20, 2025

    On March 19, the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) released two technical assistance documents intended to educate “the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” The two documents aim to inform the public about how civil rights rules and laws like Title VII of the Civil Rights Act of 1964 apply to employment policies, programs and practices, including those labeled or framed as “DEI.”

    Title VII prohibits employment discrimination based on protected characteristics, including race, color, religion, sex or national origin. As the agencies note in both documents, DEI is a broad term that is not defined under statute. The technical assistance explains that DEI practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated in whole or in part by an employee’s race, sex, or other protected characteristic. The agencies emphasize that Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes, and that unlawful discrimination may exist no matter which employees are harmed.

    Technical Assistance Document #1: The EEOC describes what DEI-related discrimination looks like.

    The first document, “What To Do If You Experience Discrimination Related to DEI at Work,” explains how DEI-related practices may manifest as discrimination under Title VII.

    • Title VII bars disparate treatment: Any employment action motivated in whole or in part by race, sex, or another protected characteristic that is taken in the context of the terms, conditions, or privileges of employment may be unlawful.*
    • Title VII prohibits limiting, segregating, and classifying: Any action taken that limits, segregates, or classifies employees based on race, sex, or other protected characteristics in a manner affecting their status or depriving them of employment opportunities may be unlawful. Examples of these practices include the establishment of workplace groups (employee resource groups or employee affinity groups) that limit membership to a protected group or groups, as well as the separation of employees into groups based on a protected characteristic when administering trainings or other privileges of employment. The document makes clear that the latter may still violate Title VII even if the separate groups receive the same training or programming content.
    • Title VII prohibits workplace harassment: Workplace harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe to reasonably be considered intimidating, hostile, or abusive. The document explains that DEI training may give rise to a hostile work environment claim and that harassment may occur when an employee is subject to unwelcome remarks or conduct based on protected characteristics.
    • Title VII prohibits employer retaliation: The agencies explain that reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for their belief that the training violated Title VII, and that an employer may not retaliate if an employee participates in an EEOC investigation or files an EEOC charge.

    The document reaffirms that Title VII protects employees, potential and actual applicants, interns, and training program participants. It directs individuals who suspect to have experienced DEI-related discrimination to contact the EEOC “promptly” as claimants have 180 to 300 days to file a claim depending on whether a state or local agency enforces a law that prohibits employment discrimination on the same basis.

    Technical Assistance Document #2: The EEOC answers additional questions about DEI-related discrimination in the workplace.

    The second technical assistance document, titled “What You Should Know About DEI-Related Discrimination At Work,” expands upon the information provided in the technical assistance document discussed above and answers a number of additional questions on how Title VII intersects with DEI-related practices in the workplace.

    Notably, the document addresses questions surrounding employers’ DEI-related considerations of race, sex, and other protected characteristics when the protected characteristic wasn’t the “sole or deciding factor” for the employers’ action. The document states that “race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employment action or the ‘but-for’ (deciding) factor for the action” for there to be unlawful discrimination. Additionally, the agencies explain that workers only need to show “some injury” or “some harm” affecting their terms, conditions or privileges of employment to allege a colorable claim of discrimination under Title VII.

    The document also makes clear that an employer may not justify an employment action simply on the basis that they have a business necessity or interest in “diversity” as Title VII prohibits employers from using business necessity as a defense against intentional discrimination claims. Likewise, the agencies explain that “client or customer preference is not a defense to race or color discrimination” and that “basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination.”

    CUPA-HR will continue to monitor for updates related to Title VII enforcement from the EEOC.


    *The terms and conditions of employment include: hiring; firing; promotion; demotion; compensation; fringe benefits; exclusion from training; exclusion from mentoring or sponsorship programs; exclusion from fellowships; selection for interviews (including placement on candidate slates).



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  • Federal Appeals Court Lifts Bar on DEI Executive Orders

    Federal Appeals Court Lifts Bar on DEI Executive Orders

    by CUPA-HR | March 17, 2025

    On March 14, the U.S. Court of Appeals for the 4th Circuit issued a decision allowing the Trump administration to enforce Executive Orders 14151 and 14173, both of which target “illegal … DEI preferences, mandates, policies, programs, and activities” in the public and private sectors and in federal contracts. The 4th Circuit’s decision effectively overrules a February 21 preliminary injunction issued in a U.S. District Court in Maryland that had blocked the administration from enforcing some provisions in the orders.

    As a reminder, orders 14151 and 14173 revoke prior executive orders, including Executive Order 11246, which required federal contractors to maintain affirmative action plans. Among other things, orders 14151 and 14173 also mandate that:

    • federal agencies include provisions in federal contracts requiring that contractors agree to comply with nondiscrimination laws and certify they do not operate any DEI programs that violate discrimination laws;
    • the Office of Management and Budget terminate all “‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities, as appropriate;” and
    • each agency “identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”

    CUPA-HR will continue to share further developments regarding the lawsuits challenging orders 14151 and 14173.

     



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