Employment Law Rulings and Guidance with Implications for Employers

The U.S. Supreme Court (the Court) and the National Labor Relations Board (NLRB) were busy last month. The Court addressed two critical issues —religious accommodations and affirmative action— while the General Counsel to the NLRB issued new guidance on protections for employees. Each may have long-term implications for employers. Here are brief summaries.

Religious Accommodations

According to this report, on June 29, 2023, the Supreme Court issued a decision in Groff v. DeJoy, a case where a former U.S. Postal Service (USPS) employee, an Evangelical Christian, sued USPS on the basis of religious discrimination. In a unanimous decision, justices ruled in favor of the postal worker. The Supreme Court explained that in order to deny a request for religious accommodation under Title VII, the employer must show that the accommodation would result in substantial increased costs in relation to conducting business. Employers should take time to review, and possibly revise, handbooks, policies, and procedures regarding religious accommodations.

Workplace Protections for Conversations About Racism

The National Labor Relations Board’s (NLRB) General Counsel, Jennifer Abruzzo, published an advice memorandum on Friday, June 30, 2023, regarding workplace discussions of racism. The Counsel’s memo explains that workplace conversations around racism are inherently protected by the National Labor Relations Act (NLRA). The memo was in response to a case involving Home Depot’s policy that prohibits employees from wearing political messages. The dress code was applied to prohibit an employee from wearing a ‘Black Lives Matter’ slogan on his work apron. The action in the memo concludes “that employee discussions in the workplace regarding racism should be deemed inherently concerted because systemic racism, including an employer’s racial discrimination, racial harassment, and/or tolerance of such discrimination or harassment, necessarily implicates significant terms and condition of employment and is of vital importance to employees.” It was further concluded “that the Region should urge the Board to expand the circumstances under which it applies the inherently concerted doctrine beyond a conversation between two people to include the wearing of a slogan or button.” This is another instance which may require employers to review, and possibly revise, handbooks, policies, and procedures.

Affirmative Action

In a historic decision released June 29, 2023, the U.S. Supreme Court struck down the use of affirmative action in college admissions programs ─ending a four-decade precedent that allowed colleges and universities to broadly consider applicants’ race in their admissions processes. Although the decision is limited to higher education and won’t directly affect employers, many people are worried. Several groups and employers wrote amicus briefs to the Supreme Court in support of affirmative action, saying its end would negatively affect the future of the workforce. Some warn that the ripple effects from the ruling could come quickly, starting with a decline in college graduates from underrepresented backgrounds. This could mean the loss of “a pipeline of highly qualified future workers and business leaders.” 

Some legal experts say the move to restrict affirmative action could also lead to more challenges in how employers make hiring and promotion decisions. Many believe that diversity, equity, and inclusion programs developed to broaden talent pools and leadership teams while leveling the playing field for underrepresented groups may face scrutiny. This article asserts the idea that “workplace diversity efforts are much broader than affirmative action (which uses specific policy to achieve diversity) because they encompass anti-bias training, mentorship programs, targeted outreach efforts and more ─a broad set of programs companies take on to make their workplaces welcoming for employees and customers.”

U.S. Equal Employment Opportunity Commission (EEOC) Chair Charlotte A. Burrows confirmed that the ruling does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. “It remains lawful for employers to implement diversity, equity, inclusion and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace, “Burrows said in a statement.

This article gives brief details regarding the ruling and says the decision “brought an onslaught of reactions from colleges and universities, private employers and the federal government.” The article suggests employers consult with their professional advisors and legal counsel on how to move forward. The article then addresses the implications for the workplace and offers suggestions for employers to consider as they work to ensure that their ”diversity initiatives meet business operations imperatives.”

These are all areas that employees and employers alike should continue to pay close attention to. There are likely to be many more developments in the coming months. We’ll keep you updated as things progress.

We are curious. What are you most concerned about as it relates to the Supreme Court’s rulings on religious accommodations or affirmative action, or the National Labor Relations Board’s guidance on workplace protections for conversations about racism? Please let us know your thoughts by answering our one-question survey.

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