EEOC Chairperson Posts Viral Video Encouraging White Men to File Discrimination Claims.
By Mark D. Tolman
On Dec. 17, 2025, Equal Employment Opportunity Commission (EEOC) Chairperson Andrea Lucas posted a video on her X account encouraging White men to file employment discrimination claims with the EEOC. In the video, which has been viewed millions of times, Chairperson Lucas said:
“Are you a white male who has experienced discrimination at work based on your race or sex? You may have a claim to recover money under federal civil rights laws. Contact the EEOC as soon as possible. Time limits are typically strict for filing a claim.”
In her viral post, Chairperson Lucas refers to the EEOC’s 2025 publication entitled, “What To Do If You Experience Discrimination Related to DEI at Work.” Like Chairperson Lucas’s video, the EEOC’s DEI publication also reminds readers of the strict time limits to file a discrimination charge and encourages majority groups to “contact the EEOC promptly” to raise a concern about alleged “DEI-related discrimination.”
Chairperson Lucas’s post, and the EEOC’s related DEI publication, are an apparent departure from the EEOC’s neutral stance—we are unaware of any other time when the EEOC encouraged a particular protected class to file claims. Only time will tell if encouragement from the EEOC will yield an uptick in “reverse discrimination” claims, i.e., employment discrimination claims raised by majority groups. We hope our readers will have only an academic interest—and not a lived experience—with such data!
Utah Legislature Repeals Public Union Ban.
By Mark D. Tolman
On Dec. 9, 2025, during a special session, the Utah Legislature repealed House Bill 267 enacted during the 2025 regular session to prohibit public sector unions (teachers, fire, police, etc.) from collective bargaining. In the wake of that bill, public sector union groups collected a record number 251,590 signatures to support a referendum asking Utah voters to repeal HB 267. The Legislature’s action last month to repeal HB 267 moots those referendum efforts. Public sector unions are back in business. You can read more about the repeal of HB 267 here: Public unions: Utah lawmakers repeal anti-public union law rather than face referendum
New Selection Method for 2026 H-1B Lottery Favors Highly-Paid Positions.
By Lewis M. Francis
The United States Citizenship and Immigration Services (USCIS) has changed the H-1B lottery selection method in a new rule effective Feb. 27, 2026. Only 85,000 H-1B visas are available each year, and there are typically four times as many employers applying for H-1Bs as there are available numbers. The prior process was a random selection method, with additional weight given to those with U.S. master’s degrees. Under the new USCIS rule, the possibility of being selected in the H-1B lottery will depend on the salary level offered. If the position has a Level IV salary (as reflected by the applicable Standard Occupational Classification (SOC) code and the U.S. Department of Labor’s prevailing wage summary), then the applicant has four chances of being selected in the upcoming H-1B lottery. In contrast, if the position has a Level III salary, then the application has three chances, a Level II salary has only two chances and a Level I salary has only one chance. Given this change in the selection method, higher-paid positions will receive nearly all of H-1B lottery selections for this year, resulting in fewer H-1Bs for small employers in diverse industries, as opposed to large IT companies paying the highest salaries. Likewise, F-1 students who just finished their U.S. degrees and now seek to transition from F-1 OPT to H-1B based on entry-level positions will have a much smaller chance of being selected.
Question Corner: The Work is Gone, but the Employee’s on Leave: Now What?
By Corey Hunter
Q. We’ve decided to downsize and would like to eliminate a role that’s no longer needed. However, the employee who fills this role is currently on medical leave. Can we terminate the position now, or must we wait until the employee returns from leave?
A. A downsizing employer can generally eliminate a position occupied by an employee on protected medical leave as long as (1) the elimination is unrelated to the leave and (2) the employer complies with applicable reinstatement requirements.
Leave is protected when sought and granted under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), or another state or federal statute providing for leave. While these statutes generally require reinstatement after leave, they also make exceptions for business necessities like those involved in downsizing.
Eliminating a Position During FMLA Leave
Under the FMLA, for example, an employee on leave is normally entitled to reinstatement to their pre-leave (or an equivalent) position when their leave ends. However, the FMLA’s “no greater rights” provision waives this requirement for employees laid off during FMLA leave, including because of position eliminations. But employers beware (and document carefully)—if faced with a request for reinstatement from a downsized employee, the burden is yours to show that the employee would have been laid off even if they had not taken leave and that the termination and position elimination are not retaliation for taking leave. To avoid FMLA liability, downsizing employers should be sure to eliminate roles based on neutral factors unrelated to leave, not merely because their occupants aren’t around to advocate for their jobs.
Eliminating a Position During ADA Leave
ADA leave operates slightly differently. Employers are often required to grant medical leave as a reasonable ADA accommodation. An employee granted ADA leave as a reasonable accommodation is generally entitled to return to their same position—not an equivalent position, as under the FMLA—unless the employer demonstrates that holding the position open would impose an undue hardship.
After careful documentation and individualized consideration, an employer downsizing for legitimate business reasons could likely demonstrate that holding a redundant or unnecessary position open constitutes an undue hardship. But even so, under the ADA, that employer must then consider whether the employee on leave can be reassigned to an equivalent position (as opposed to their exact pre-leave position, now eliminated). If no equivalent position is available, the employer must consider reinstatement to a lesser position. Reinstatement is not required only if a vacant position at a lower level is also unavailable.
Don’t Forget State Law
Employers should also consider state leave law requirements. States including Colorado, Washington and Oregon have adopted family and medical leave laws, and those laws generally create reinstatement rights. Other states have pregnancy leave laws (Montana, for example), while others (like Nevada) provide leave for victims of domestic violence and sexual assault. Every state has a workers’ compensation statute, and those statutes too can provide health-based leave for injured workers. Where medical leave is taken under any of these statutes, employers should consult with counsel to determine whether (1) the statutes have reinstatement requirements, and (2) allow, like the FMLA and ADA, exception to reinstatement requirements where positions are eliminated for business reasons.
