Disparate Impact

News & Analysis as of

Fifth Circuit Says Texas May Challenge EEOC Criminal Background Check Guidance

In 2012, the Equal Employment Opportunity Commission issued an Enforcement Guidance stating when employers’ use of criminal background checks to exclude applicants from jobs violates Title VII. The Guidance states the EEOC’s...more

No Texas Hold ‘Em: Fifth Circuit Allows Texas to Challenge the EEOC Enforcement Guidance

A somewhat surprising decision in favor of the State of Texas was handed down from the Fifth Circuit Court of Appeals on June 27, 2016, which held that (i) Texas had standing to challenge the Equal Employment Opportunity...more

OFCCP Updates Guidance on Sex Discrimination to Reflect Modern Workplace

On June 15, 2016 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published its Final Rule updating federal contractor requirements to ensure nondiscrimination on the basis of sex in the...more

Proposed EEOC Guidance on National Origin Discrimination Provides Clues to Agency’s Focus

The Equal Employment Opportunity Commission has issued a Proposed Enforcement Guidance on National Origin Discrimination (“PEG”) and is allowing the public to comment through July 1, 2016. The last time the EEOC issued...more

Texas Keeps Messin’ With EEOC

Yesterday the Fifth Circuit benchslapped the EEOC in a case involving the agency’s criminal history “guidance.” State of Texas v. EEOC, No. 14-10949 (5th Cir. June 27, 2016). We previously blogged about the State of Texas’...more

Don’t Mess With Texas: EEOC’s Criminal Background Check Guidance Subject To Challenge

On June 27, 2016, the U.S. Court of Appeals for the Fifth Circuit handed a victory to the State of Texas in Texas v. EEOC , No. 14-10949 (5th Cir. June 27, 2016), by remanding back to the district court the case it dismissed...more

Moving Away From The “Mad Men” Era: The OFCCP Updates Its Sex Discrimination Guidelines

For the first time since 1970, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is updating its sex discrimination guidelines for federal contractors. These updates, announced last week, will...more

OFCCP’s New Sex Discrimination Regulations Impose a Few New Obligations on Employers

The Final Rule on Sex Discrimination from the Office of Federal Contract Compliance Programs recognizes the expanding interpretation of “because of sex” as a basis for discrimination, but does not impose on federal...more

Big Data Can Lead to Big Legal Problems For Companies

Deluged with an unprecedented amount of information available for analysis, companies in just about every industry are discovering increasingly sophisticated ways to make market observations, predictions and evaluations. Big...more

The Future Of CFPB Small Business Lending Regulation

In this article we highlight the role played by the Consumer Financial Protection Bureau in regulating small business lending. Broadly speaking, the bureau’s jurisdiction is limited to the marketplace for consumer financial...more

Was a CFPB Enforcement Action Based on "Racial Profiling and Junk Science"?

In a press release dated April 18, 2012, the Consumer Financial Protection Bureau (CFPB or Bureau) declared that it would "use all available legal avenues, including disparate impact, to pursue lenders whose practices...more

What Employers Need to Know About the New York City Pregnancy Accommodation Enforcement Guidance

The New York City Commission on Human Rights has released enforcement guidance on the New York City Pregnant Workers Fairness Act identifying five categories of potential violations and emphasizing the need to engage in...more

Not Starry-Eyed: Massachusetts Imposes Rigorous Standard on Fair Housing Disparate Impact Claims in Burbank Apartments

The Massachusetts Supreme Judicial Court (“SJC”) recently answered the question of whether the Massachusetts anti-discrimination statute Chapter 151B recognizes a disparate impact theory of discrimination. In Burbank...more

Landmark Discrimination Case: Fair Housing Act Thwarts NIMBYs - Avenue 6E Investments, LLC v. City of Yuma (March 25, 2016)

Why It Matters: The Ninth Circuit Court of Appeals reversed a decision in favor of the City of Yuma, Arizona, and concluded instead that there was sufficient evidence to present to a jury that the City had rejected the...more

What GCs Need to Know About Reductions in Force

Reductions in force (“RIFs”) are group terminations, usually driven by the financial condition or business needs of the employer. An employer’s General Counsel, even though responsible for protecting the employer from legal...more

Industry trade groups’ renewed challenge to HUD disparate impact rule could yield helpful precedent for ECOA cases

The D.C. district court recently granted two industry trade associations whose members sell homeowners insurance leave to file an amended complaint in their lawsuit challenging the Fair Housing Act (FHA) disparate impact rule...more

Section 1557 of the ACA: The Legal Side of Health Equity

This week marks the end of National Minority Health Month and its 2016 theme of “Accelerating Health Equity for the Nation.” This month, the HHS Office of Minority Health’s goal was to “raise awareness of the health...more

Lawler Foods to Pay over $1 Million to Settle EEOC Race and National Origin Discrimination Suit

Bakery Refused to Hire Applicants Based on Their Race/National Origin, Federal Agency Alleged - HOUSTON - A large local bakery will pay $1,042,000 as part of the settlement of a class race and national origin...more

Massachusetts High Court Examines Disparate Impact Theory in Light of Recent Supreme Court Decision

A ruling last week by Massachusetts' highest state court demonstrates courts' vigorous examination of disparate impact housing claims in light of recent judicial guidance, as well as the type of proactive measures property...more

Industry Trade Groups Renew Challenge to HUD Disparate Impact Rule

Two industry trade associations whose members sell homeowners insurance have been granted leave to file an amended complaint in their lawsuit challenging the Fair Housing Act (FHA) disparate impact rule (Rule) adopted by the...more

Can the USPTO Still Reject “Disparaging” Trademarks? Stay Tuned

Nobody knows, and that’s why the United States Patent and Trademark Office (USPTO) just filed a petition asking Supreme Court to settle its turf battle with the Federal Circuit Court....more

HUD Releases Guidance on Criminal Background Checks by Housing Providers

The U.S. Department of Housing and Urban Development (HUD) on April 4, 2016, issued guidance addressing Fair Housing Act liability regarding the use of criminal background checks or screenings in housing determinations....more

Director Cordray defends CFPB positions in appearance before Senate Banking Committee; comments on small business lending and...

Much of Director Cordray’s testimony in his appearance before the Senate Banking Committee yesterday consisted of his predictable defense of various CFPB positions. While the hearing was much less contentious than last...more

Life and Annuity Series: Cost-of-Insurance Charge Litigation

Plaintiffs' lawyers have been challenging cost-of-insurance (COI) charges for years, with mixed results. The following outline reviews the most recent flurry of cases. ...more

HUD publishes new Fair Housing guidance on criminal background checks

On Monday, HUD published new guidance for landlords conducting criminal background checks as a condition of renting housing. This guidance is applicable to all providers or operators of housing and real estate related...more

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