Tag: guidance

  • Education Department Publishes Guidance Letter Deeming Race-Conscious Programs, Activities and Practices Illegal

    Education Department Publishes Guidance Letter Deeming Race-Conscious Programs, Activities and Practices Illegal

    by CUPA-HR | February 18, 2025

    On February 14, the Department of Education’s Office for Civil Rights (OCR) published a “Dear Colleague” letter “to clarify and reaffirm the nondiscrimination obligations of schools … that receive federal financial assistance” from the department. The letter specifically states that “Federal law … prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life” (emphasis added).

    The department warns that “institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding,” and cites the government’s authority to do so under “Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the U.S. Constitution, and other relevant authorities.”

    The letter reiterates institutions’ existing legal requirements under federal antidiscrimination laws and is intended to provide clarity to institutions of their nondiscrimination obligations. However, in addition to pointing to existing federal antidiscrimination laws, OCR expands upon the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA) — which banned the use of race-conscious admissions practices at institutions of higher education — to apply more broadly to programs and practices at institutions. Specifically, OCR states that the court’s decision and applicable federal law prohibits covered entities “from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

    OCR provides a few examples of practices that would be illegal under federal antidiscrimination law. One example, which was prohibited in the text of the SFFA decision, is using “students’ personal essays, writing samples, participation in extracurriculars, or other cues” as a means to determine a student’s race to grant preferences to that individual. Additionally, the letter states that using proxies like the one just described is illegal on the systematic level, stating that it is unlawful for institutions to eliminate standardized testing to “achieve a desired racial balance or to increase racial diversity.” In both examples, OCR appears focused on the motive for the action rather than the action itself. Thus, an institution can choose to use or not use standardized tests or focus on certain criteria in applications as long it is not doing so for an impermissible reason.

    The letter also says that other programs violate antidiscrimination laws in less direct ways. Specifically, the letter states that “DEI programs … frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not” and that “such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes.” They assert that these programs ultimately deny students the ability to fully participate in “the life of a school.”

    The letter states that the Department of Education will begin to assess institutional compliance with antidiscrimination law and regulations no later than 14 days after of the date of publication of the letter. In the letter, OCR advises schools to:

    • Ensure that their policies and actions comply with existing civil rights law.
    • Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends.
    • Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.

    Possible Implications for Higher Education HR Professionals

    As noted above, the letter specifies using race in hiring, promotion and compensation decisions is prohibited under federal law, though the Department of Education does not provide examples of hiring and compensation practices that could be violations of such laws. While the primary federal laws prohibiting discrimination in employment are Title VII of the Civil Rights Act of 1964 and similar equal employment opportunity laws enforced by the Equal Employment Opportunity Commission (EEOC), Title VI can apply to employment decisions. It is unclear how the department intends to enforce this letter with respect to hiring, promotion and compensation practices and whether the Department of Labor or the EEOC will provide further guidance. CUPA-HR intends to seek clarification from the Education Department and the other agencies.

    CUPA-HR is assessing the impact that this enforcement letter will have on institutions and will keep members apprised of further developments related to the Trump administration’s DEI orders.



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  • Trump administration rescinds Title IX guidance on athlete pay

    Trump administration rescinds Title IX guidance on athlete pay

    The Trump administration announced Wednesday it is rolling back guidance issued in the final days of the Biden administration that said payments to college athletes through revenue-sharing agreements or from name, image and likeness deals “must be made proportionately available to male and female athletes.”

    Republicans quickly criticized the guidance and called for its rescission, arguing that mandating equal pay between men and women’s sports could cause some colleges to cut athletics programs.

    Under Title IX, colleges must provide “substantially proportionate” financial assistance to male and female athletes, though it wasn’t clear until the Biden guidance whether that requirement applied to NIL deals or revenue-sharing agreements. A settlement reached in the House v. NCAA case would require colleges to share revenue with athletes starting in the 2025–26 academic year and provide back pay.

    The Trump administration said the guidance was “overly burdensome” and “profoundly unfair.”

    “Enacted over 50 years ago, Title IX says nothing about how revenue-generating athletics programs should allocate compensation among student athletes,” acting assistant secretary for civil rights Craig Trainor said in a statement. “The claim that Title IX forces schools and colleges to distribute student-athlete revenues proportionately based on gender equity considerations is sweeping and would require clear legal authority to support it.”

    A federal judge is set to sign off on the House settlement later this spring. Several athletes have objected to the plan, including some groups of women athletes who argue the revenue won’t be shared equitably and will primarily benefit men who play football and basketball.

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  • Department of Education Releases Enforcement Guidance for Title IX

    Department of Education Releases Enforcement Guidance for Title IX

    by CUPA-HR | February 5, 2025

    On February 4, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to institutions of higher education regarding enforcement of Title IX regulations. Specifically, the letter reaffirms that OCR will enforce the first Trump administration’s Title IX rule instead of the Biden administration’s Title IX rule.

    As a reminder, in early January of this year, a judge from the Eastern District of Kentucky Court struck down the Biden administration’s rule nationwide, reverting enforcement back to the 2020 Title IX regulations for all institutions. In the Dear Colleague letter, OCR states that the Department of Justice is responsible for determining whether to appeal the district court’s decision, but they confirm that the decision was effective immediately and that the Biden administration’s rule is no longer in effect in any jurisdiction.

    In addition to the court decision, the letter also points to Trump’s executive order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The letter restates from the executive order that all federal agencies are directed to “‘enforce all sex-protective laws to promote [the] reality’ that there are ‘two sexes, male and female,’ and that ‘[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.’” As such, the letter states that OCR must enforce Title IX consistent with the executive order.

    Finally, the letter orders all open Title IX investigations initiated under the Biden administration’s Title IX rule to “be immediately reoriented to comport fully with the requirements of the 2020 Title IX rule.” It also directs institutions to a Title IX resource page on the Department of Education’s website, which includes resources that provide an overview of the changing Title IX landscape over the past couple of years.

    CUPA-HR is hosting a webinar on Title IX and Title IV enforcement at OCR on February 25 at 1 p.m. ET. The webinar is free to attend but registration is limited. A recording of the webinar will be available after the live event. CUPA-HR will continue to monitor for new developments related to Title IX enforcement under the new Trump administration.



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  • Trump’s Education Department nixes DEI initiatives and guidance

    Trump’s Education Department nixes DEI initiatives and guidance

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    The U.S. Department of Education announced Thursday that it is eliminating its diversity, equity and inclusion initiatives, a move tied to President Donald Trump’s directives to purge DEI from the federal government. 

    The agency said it has “removed or archived” hundreds of outward-facing documents — including guidance, reports and training materials — that mention DEI. That includes links to resources encouraging educators to incorporate DEI in their classrooms, a department spokesperson said. 

    The department also put agency employees tasked with leading DEI initiatives on paid leave.  A spokesperson declined to comment Friday on how many staff members were placed on leave, citing privacy concerns. 

    The move comes after Trump signed several executive orders on the first day of his presidency designed to dismantle the Biden administration’s DEI efforts. That includes an order directing all federal agencies to end their DEI programs and positions “under whatever name they appear.”

    Additionally, the Education Department dissolved its Diversity & Inclusion Council. The agency has also canceled DEI training and service contracts for staff, totaling more than $2.6 million. 

    Department officials said they will continue reviewing the agency’s programs to identify other initiatives and groups “that may be advancing a divisive DEI agenda, including programs using coded or imprecise language to disguise their activity.”

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  • Trump’s Education Department nixes DEI initiatives and guidance

    Trump’s Education Department nixes DEI initiatives and guidance

    This audio is auto-generated. Please let us know if you have feedback.

    The U.S. Department of Education announced Thursday that it is eliminating its diversity, equity and inclusion initiatives, a move tied to President Donald Trump’s directives to purge DEI from the federal government. 

    The agency said it has “removed or archived” hundreds of outward-facing documents — including guidance, reports and training materials — that mention DEI. That includes links to resources encouraging educators to incorporate DEI in their classrooms, a department spokesperson said. 

    The department also put agency employees tasked with leading DEI initiatives on paid leave.  A spokesperson declined to comment Friday on how many staff members were placed on leave, citing privacy concerns. 

    The move comes after Trump signed several executive orders on the first day of his presidency designed to dismantle the Biden administration’s DEI efforts. That includes an order directing all federal agencies to end their DEI programs and positions “under whatever name they appear.”

    Additionally, the Education Department dissolved its Diversity & Inclusion Council. The agency has also canceled DEI training and service contracts for staff, totaling more than $2.6 million. 

    Department officials said they will continue reviewing the agency’s programs to identify other initiatives and groups “that may be advancing a divisive DEI agenda, including programs using coded or imprecise language to disguise their activity.”

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  • Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    by CUPA-HR | May 13, 2024

    On May 7, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to offer guidance on schools’ responsibilities to prevent and rectify discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics, under Title VI of the Civil Rights Act of 1964 and its implementing regulations. The guidance aims to provide examples to institutions to help them carry out their Title VI requirements.

    In its letter, OCR explains that it has received an increase in complaints alleging discrimination based on race, color, or national origin at colleges and universities, as well as public reports of such discrimination. While it does not explicitly state that the guidance is in response to reports of antisemitism on campuses and protests regarding the Israel-Hamas war, the department emphasizes in the letter that Title VI’s “protections extend to students and school community members who are or are perceived because of their shared ancestry or ethnic characteristics to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian or any other faith or ancestry,” and that “Title VI’s protections against discrimination based on race, color and national origin encompass antisemitism.”

    Additionally, the letter addresses First Amendment considerations, as well as two legal frameworks used by OCR and courts to assess whether schools have violated Title VI through discrimination: hostile environment and different treatment. The guidance illustrates nine examples that may prompt OCR to investigate an institution for possible Title VI violations within these two frameworks. Of particular importance for higher ed HR are the instances outlined in the letter when educators and other faculty members might engage in actions constituting harassment under Title VI, as well as schools’ obligations to address such incidents.

    As OCR notes, the guidance lacks the authority of law and does not impose obligations on the public or establish new legal standards. Instead, its purpose is to provide clarity to institutions receiving federal financial assistance regarding their requirements under Title VI. CUPA-HR will continue to share resources regarding institutions’ obligations to address discrimination under federal law.



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  • EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the U.S. Equal Employment Opportunity Commission issued final guidance on workplace harassment and discrimination titled “Enforcement Guidance on Harassment in the Workplace.” The guidance clarifies existing employer obligations to address workplace discrimination and aims to assist employers in recognizing, managing and preventing in-person and online workplace harassment.

    Background

    The EEOC administers and enforces Equal Employment Opportunity law to protect workers against workplace discrimination. As such, the EEOC issues guidance to help employers and employees understand their obligations and rights under EEO law to a workplace free from discrimination. In October 2023, the EEOC issued its proposed guidance on harassment in the workplace, in which they provided an overview and examples of situations that would constitute workplace harassment. The EEOC received over 38,000 comments from the public in response to the proposed guidance, which they analyzed to develop the final guidance summarized below.

    Summary of Final Guidance

    The EEOC’s final guidance aligns with and expands upon the proposed guidance and revises previous EEOC workplace harassment and discrimination guidance to address significant legal developments in recent years. Specifically, the guidance includes new overviews of workplace protections against harassment based on sexual orientation and gender identity, which the 2020 Supreme Court Bostock v. Clayton County ruling established as precedent. The guidance also addresses pregnancy, childbirth and related medical conditions as protected characteristics under the scope of “sex.” Though pregnancy has previously been protected against workplace harassment under laws like the Pregnancy Discrimination Act, recent laws like the Pregnant Workers Fairness Act and its implementing regulations have strengthened the protections afforded to pregnant workers, necessitating the need for the EEOC to update its guidance.

    In addition to the expanded scope of sex, the EEOC also includes new guidance on potential challenges relating to social media and the workplace. This includes conduct occurring in a non-work-related virtual setting (such as social media platforms or private messaging systems on personal computers or phones) that could impact the workplace. In the guidance, the EEOC provides scenarios in which certain messages shared via private messages on phones or posts shared on social media platforms about employees could create hostile work environments, triggering the requirement for employers to correct the situation.

    In total, the guidance provides 77 examples to explain harassment and discrimination in the workplace, hostile work environments, employer liability and obligations to correct workplace harassment and discrimination, and systemic harassment. As the EEOC noted in the proposed rule, the guidance and its examples “do not have the force and effect of law and are not meant to bind the public in any way.” Instead, the guidance is “intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

    In addition to the guidance, the EEOC also published educational materials for employers and employees seeking direction and support on harassment prevention strategies, including a summary of key provisions, an FAQ for employees, and a fact sheet for small businesses.

    CUPA-HR will keep members apprised of further EEOC guidance on discrimination and harassment in the workplace.



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  • DOL Issues Guidance on AI in the Workplace – CUPA-HR

    DOL Issues Guidance on AI in the Workplace – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin on “Artificial Intelligence and Automated Systems in the Workplace Under the Fair Labor Standards Act and Other Federal Labor Standards.” The bulletin provides guidance on the applicability of the FLSA and other federal labor standards as they relate to employers’ increased use of artificial intelligence and automated systems in the workplace.

    Background

    In October 2023, President Biden released an Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” and directed agencies across the federal government to take action to address the increased use of AI in all areas of life. With respect to AI in the workplace, the order directed the U.S. Secretary of Labor to “issue guidance to make clear that employers that deploy AI to monitor or augment employees’ work must continue to comply with protections to ensure that workers are compensated for their hours worked, as defined under the Fair Labor Standards Act (…) and other legal requirements.” The Field Assistance Bulletin is the first response from the DOL to the Executive Order’s directive, though additional guidance may be provided in the future.

    Summary of Guidance

    The bulletin discusses existing employer obligations to comply with and avoid penalties under relevant federal labor laws. It also clarifies that the use of AI and other technologies does not absolve employers of their responsibilities to comply with such laws. CUPA-HR’s government relations team has summarized the key points of the guidance below.

    AI and the FLSA

    The guidance highlights employers’ obligations to pay employees at least the federal minimum wage for all hours worked and at a rate of at least one and one-half times their regular rate of pay for every hour worked in excess of 40 in a single workweek. As such, WHD recognizes that employers have implemented AI and other automated systems to comply with these requirements, including implementing systems to help track work time, monitor break time, assign tasks to available workers, and monitor work locations. Additionally, WHD provides examples of AI and other technologies employers use to help calculate wages owed under the FLSA.

    WHD also recognizes that AI has the potential to undercount hours worked or miscalculate wage rates owed to employees. Regardless of the use of AI, WHD states in its guidance that “employers are responsible for ensuring that they are paying employees for all hours worked” under the FLSA and that “employers are responsible for ensuring that the use of AI or other technologies to calculate and determine workers’ wage rates does not cause workers to be paid in violation of” the FLSA and other applicable federal wage standards. As such, WHD suggests that employers exercise human oversight over the technologies to ensure they are not violating the FLSA.

    AI and the Family and Medical Leave Act

    Similar to WHD’s discussion of employers’ obligations to adhere to the requirements of the FLSA, the bulletin provides guidance on employers’ responsibilities to adhere to the requirements of providing Family and Medical Leave Act leave when using AI and other automated systems. WHD once again recognizes that some employers use AI and other tools to process leave requests, determine whether an employee has provided proper certification that supports the need for FMLA leave, or track the use of FMLA leave. As a result, WHD states that employers should oversee the use of AI or automated systems used to implement FMLA leave “to avoid the risk of widespread violations of FMLA rights when eligibility, certification, and anti-retaliation and anti-interference requirements are not complied with.”

    AI and Nursing Employee Protections

    WHD also provides guidance for employers’ use of AI as it relates to nursing employees’ rights to reasonable break time and space to express breast milk while at work, as protected under the FLSA and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The bulletin states that, though employers may use AI to track employee work hours, set work schedules, and manage break time requests, any instance in which automated systems “limit the length, frequency, or timing of a nursing employee’s breaks to pump would violate the FLSA’s reasonable break time requirement.” The guidance also states that systems that score productivity and/or penalize workers for failing to meet productivity standards due to pump breaks would violate the FLSA. Finally, they clarify that automated systems that require nursing employees to work additional hours to make up for time spent during pump breaks or that reduce the hours scheduled in the future for workers because they took pump breaks would be considered “unlawful retaliation” under the FLSA. WHD therefore provides that “employers are responsible for ensuring that AI or other automated systems do not impose adverse actions on employees for exercising their rights to pump at work.”

    AI and the Employee Polygraph Protection Act

    The bulletin provides an overview of the Employee Polygraph Protection Act (EPPA) and most private employers’ prohibition from using lie detector tests on employees or for pre-employment screenings. In light of this law, WHD recognizes that AI technologies have been developed to “use eye measurements, voice analysis, micro-expressions, or other body movements to suggest if someone is lying or detect deception.” As such, WHD reaffirms that EPPA prohibits covered private employers from using AI technology as a lie detector test.

    AI and Prohibited Retaliation

    Finally, the bulletin covers protections against retaliatory conduct provided under the FLSA and other laws administered by WHD to employees who have filed complaints about potential violations of their rights. As a result of these protections, WHD states that “the use of AI and other technologies by employers to take adverse action against workers for engaging in protected activities under one or more laws enforced by WHD constitutes unlawful retaliation.” Additionally, WHD clarifies that the use of AI to surveil the workforce for protected activity and to take adverse actions could violate anti-retaliation protections under the FLSA and other laws. As such, WHD reminds employers in the guidance that they are responsible for compliance with anti-retaliation provisions regardless of whether they incorporate AI technology into their business practices.

    CUPA-HR will continue to monitor for additional guidance from federal agencies as it relates to the use of AI in the workplace.



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  • EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | October 27, 2023

    On September 28, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published new proposed guidance for employees and employers on navigating and preventing workplace harassment. “Enforced Guidance on Harassment in the Workplace” highlights and upholds existing federal employment discrimination laws and precedence, such as the Pregnant Workers Fairness Act (PWFA) and the Supreme Court’s Bostock v. Clayton County decision.

    The Updated Guidance

    The proposed enforcement guidance provides an overview and examples of situations that would constitute workplace harassment. Of particular interest are provisions included that reflect new and existing protections from harassment under federal laws and precedence, as well as emerging issues surrounding the workforce. The guidance discusses the following notable provisions for consideration:

    • Pregnancy, childbirth and related medical conditions. The guidance states that sex-based harassment includes harassment revolving around pregnancy, childbirth or related medical conditions, all of which are protected under federal laws like the Pregnancy Discrimination Act and the recently enacted PWFA.
    • Sexual orientation and gender identity. The guidance provides several examples of discrimination and harassment on the basis of sexual orientation and gender identity, which is considered sex-based discrimination under Title VII of the Civil Rights Act after the Supreme Court’s 2020 Bostock v. Clayton County decision.
    • Virtual and online harassment. The guidance states that conduct within a virtual work environment can contribute to a hostile environment, providing examples such as harassing comments made during remote calls or discriminatory imagery being visible in an employee’s workspace while in a work-related video call. Additionally, the guidance provides examples of conduct on social media outside of work-related contexts that may contribute to hostile work environments if such conduct impacts the workplace.

    In the proposed guidance, the EEOC reminds stakeholders that the final guidance will “not have the force and effect of law” and that such guidance is “not meant to bind the public in any way.” Instead, the document “is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.”

    Looking Ahead

    The proposed guidance is open for public comments through November 1, 2023. Once the comment period closes, the EEOC will review all feedback they received and make changes to address the comments prior to issuing a final rule. CUPA-HR will keep members apprised of any updates on this EEOC guidance, as well as new and existing laws falling under the EEOC’s jurisdiction.



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