Title VII of the Civil Rights Act and other U.S. anti-discrimination laws have traditionally relied on two key theories of liability – disparate impact and disparate treatment. An April 23, 2025 Executive Order issued by President Trump effectively eliminates the disparate impact theory in federal employment cases. Disparate Impact vs. Disparate Treatment Theories Disparate impact discrimination occurs when a facially neutral workplace policy or practice disproportionately harms a protected group. Katherine M. O’Malley, Marquette 2014, is senior manager,
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Labor & Employment Law Section | State Bar of Wisconsin Blogs
Latest from Labor & Employment Law Section | State Bar of Wisconsin
Attorneys and Law Students Present on Employment Rights
This spring, labor and employment attorneys and law students have been busy teaching employee rights and obligations to students in Madison.
Naomi R. Swain, U.W. 2021, is an associate attorney at
Hawks Quindel’s, Madison office. Her practice covers worker’s compensation, disability benefits, and family law. Under attorney supervision, U.W. Law School students in the Labor and Employment Student Association (LESA) spoke with high school students about basic employee rights. Similarly, labor and employment attorneys present to Certified
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Title VII Damage Cases in the Seventh Circuit Since Muldrow
In April 2024, the Supreme Court decided Muldrow v. City of St. Louis,1 and in so doing, reduced the magnitude of harm some courts (including courts in the Seventh Circuit) previously required to establish an “adverse action” in Title VII discrimination claims. Muldrow resolved “a Circuit split over whether an employee challenging a job transfer under Title VII must meet a heightened threshold of harm – be it dubbed significant, serious, or something similar.”2 Martin C.
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CBD, THC, and the Wisconsin Fair Employment Act
Consider the following hypothetical: a veteran employee of a Wisconsin corporation with a spotless disciplinary record shows up to work, where he is required to take a random drug test. The test is pursuant to the corporation’s long-established drug use policy, which mandates immediate termination for employees who test positive for controlled substances without a valid prescription. The policy is applied evenly to all employees, and the tests are administered without bias or discrimination.
Although the employee states that
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New Challenge to Act 10 Overcomes Dismissal and Appears Headed for State Supreme Court
In November 2023, seven unions filed suit in Dane County Circuit Court returning to do battle against a familiar foe: 2011 Wisconsin Act 10. The suit seeks to have Act 10 blocked, arguing that it violates the Wisconsin Constitution’s equal protection clause. On July 3, 2024, the court rejected a motion to dismiss the case and “declare[d] those provisions of [Act 10] relating to collective bargaining modifications unconstitutional and void.” The battle over Act 10 is, perhaps unsurprisingly, far
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EEOC Issues Final Guidance on Workplace Harassment
In December 2023, I wrote about the EEOC’s proposed harassment guidance in this blog. At that time, the public comment period had concluded but final guidance had not yet been released.
On April 24, 2024 – nearly 25 years after the EEOC last published guidance on the topic, the Equal Employment Opportunity Commission (EEOC) released final guidance document on unlawful workplace harassment. It released a summary of key provisions, FAQs for employees, and a fact sheet for
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Unreasonable Refusal to Rehire: When Must Employers Rehire Injured Employees?
Wis. Stat. section 102.35(3) provides a penalty of up to one year’s wages for employers who fail to rehire injured workers where suitable work is available within their restrictions. In addition to standard claims for permanent damage to the body and compensation for time off work while healing, Wisconsin workers’ compensation law allows for several additional, less common claims, depending on the employee’s situation. One of those claims is the unreasonable refusal to rehire (URR). To establish liability for
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‘Home Depot’ and the NRLB: Section 7 on Steroids
Many commentators and practitioners have expressed surprise over the National Labor Relations Board’s (NLRB) expansion of the scope of Section 7 rights. The Board’s recent decision in Home Depot1 is the latest lightening rod for this concern.
On its face, the concern is understandable.
The Decision in Home Depot
In Home Depot, the Board found that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7
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‘Seismic’: NLRB Rules Dartmouth Men’s Basketball Players are Employees
On Feb. 5, 2024, the National Labor Relations Board’s (NLRB) Region 1 director in Trustees of Dartmouth College,1 found that members of the college’s men’s basketball team qualify as “employees” under Section 2(3) of the National Labor Relations Act (NLRA).
Background
The Board in 2015 considered another case regarding collegiate-level student athletes’ employment status: Northwestern University.2 In this case, the Board declined to assert jurisdiction and did not explicitly rule whether student athletes were “employees” under the
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3 Tips for Filing a Claim with OSHA’s Whistleblower Protection Program
Employees who report or oppose actual or suspected legal or regulatory violations enjoy retaliation protections that are
spread across more than 50 federal statutes. Depending on the nature of the violation and other factors, these whistleblower protections vary widely in terms of their filing deadlines, available remedies, and method of enforcement. Potential venues for bringing a whistleblower claim include:
- state and federal courts;
- the Equal Employment Opportunity Commission (EEOC);
- the Merit Systems Protection Board (MSPB); and
- federal offices
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EEOC’s Proposed New Guidance on Harassment in the Workplace
Workplace harassment continues to loom large in the employment law space.
In FY2018 through FY2022, Equal Employment Opportunity Commission (EEOC) statistics show that more than one-third of charges filed with the agency alleged unlawful harassment.
The EEOC’s latest guidance document regarding unlawful harassment was published in 1999.1Since that time, the practical and legal landscape has evolved dramatically: the #MeToo Movement brought awareness to sexual harassment and sexual violence, the Supreme Court’s decision in Bostock2 clarified that
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Disability Benefits: When Terminated Employees Are Still Eligible
There is understandable confusion among employees and their employers about an employee’s access to disability insurance coverage after termination of the employee/employer relationship.
Disability insurance coverage is an employee benefit, and some assume that when employment ends, employee benefits – including disability insurance – end. However, that is not always the case.
In fact, the termination of employment generally should not affect ongoing short-term disability (STD) or long-term disability (LTD) benefits or even prevent employees from applying for benefits
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Does the NLRB Really Favor Secret-ballot Elections?
In its decision in Cemex Construction Materials1 (now on appeal), the National Labor Relations Board (NLRB) abandoned 50 years of precedent and made it decidedly easier for unions to establish majority support without conducting a Board-supervised secret-ballot election. The Board’s new approach, if upheld, likely will result in fewer secret-ballot elections, thus depriving employees of the opportunity to express their true beliefs regarding union representation in the sanctity of the voting booth. The Concept of Majority Support An employer
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Worker’s Compensation in the Work-from-Home Era
At the onset of the COVID-19 pandemic in 2020, many employees around Wisconsin transitioned from a traditional office setting to working remotely from home. Since then, new questions have been raised by workers regarding which at-home injuries might be covered under the Worker’s Compensation Act.
The short answer is that most at-home injuries suffered in the course of an employee’s job duties are covered under the Worker’s Compensation Act. However, workers’ compensation insurers can be quick to deny at-home
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Court Clarifies When Employer Accommodation Obligation Occurs
This article was originally published in
Boardman Clark’s labor and employment blog, “Head’s Up,” and is published here with permission. The Wisconsin Fair Employment Act (WFEA) prohibits covered employers from discriminating against employees based on disability. Failing or refusing to reasonably accommodate an individual with a known disability is a form of disability discrimination. Disabilities are not always obvious, and it can be tricky to recognize when employees are making requests for accommodations. Employees are not required to use
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Workplace Discrimination: When Two or More Protected Classes are Involved
For nearly 60 years, Title VII of the Civil Rights Act of 1964 has firmly controlled and governed claims of workplace discrimination for millions of Americans. The formula is quite simple:
The easiest case to make is one that is straightforward, when a single individual has a single protected characteristic that the
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