Employment Law Update
By Michael Judd
Everyone’s Lost but Me: Circuit Court Lifts Pause on Private-Sector DEI Executive Order While Acknowledging that No One Knows What the Order Does
During January 2025, President Trump signed an Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”—an order that’s come to be known as the administration’s “private-sector DEI order.” The White House characterized the effect of that order in bold terms: it “reaffirms” fundamental American values by “terminating DEI.”
Part of that private-sector DEI order was an “Enforcement Threat Provision”: a provision telling the Attorney General to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” In late February, a federal district court enjoined the government from launching compliance investigations under that provision. But this month, the Fourth Circuit Court of Appeals stayed that order pending appeal.
That means two things for employers. First, that private-sector DEI order is now in effect. And second, no one is quite sure what that order means. The Trump administration has already stoked unease by demanding information from 20 prominent law firms about their DEI initiatives. But as one judge concurring in the Fourth Circuit’s stay order observed, the Enforcement Threat Provision is, on its face, surprisingly limited: it doesn’t “purport to establish the illegality of all [DEI] efforts,” it simply targets “conduct that violates existing federal anti-discrimination law.”
At least on its face, the private-sector DEI order attacks practices that have long been unlawful: any “programs or principles,” by any name, “that constitute illegal discrimination or preferences.” Employers desperate to know how to balance benefits and risks of their DEI initiatives lack a true crystal ball. But useful test cases are emerging: for first principles, try Young v. Colorado Department of Corrections (a March 2024 Tenth Circuit case) and Diemert v. City of Seattle (a February 2025 Western District of Washington case).
Happy Birthday, Dear Covid: An Anniversary No One Wants to Celebrate
After years of navigating complicated workplace issues, employers are understandably eager to see the Covid pandemic retreat into the past. This month, The New York Times marked the five-year anniversary of the Covid lockdown with a data-visualization project styled “30 Charts That Show How Covid Changed Everything.”
That project closes with a set of charts showing that “many things that we took for granted never returned to their former level.” One of those charts provides a useful caution to employers: after holding relatively steady between 2015 and 2020, the number of U.S. adults reporting a disability surged from around 30 million in March 2020 to nearly 35 million today. That surge may be driven in party by Long Covid cases: one recent report counts 20 million Americans with Long Covid diagnoses. Many workers who have suffered from Long Covid haven’t returned to full-time work at all. When workers do return to their jobs, employers find accommodating Long Covid under the Americans with Disabilities Act (ADA) to be tricky.
Though the Center for Disease Control (CDC) stopped tracking new Covid cases in mid-2023, Long Covid-related accommodation requests continue. The pandemic’s long tail offers a sharp reminder, in a modern context: the past is never dead—it’s not even past.
Iowa: First in Corn, First to Vote, First to Balk at Its Own Protected Classes
Iowa’s known for corn, for Caitlin Clark and for long being the first state to vote in presidential elections. Iowa’s now added another “first:” it’s the first state to take away civil-rights protections associated with gender identity.
For employers, tracking protected classes comes with the territory. Both federal and state law prohibit discrimination in the workplace, and tracking protected classes takes work—especially for multistate employers. Certain classes, including race, sex, religion and national origin, enjoy protection under virtually every body of state law. Other classes, like weight, marijuana use or vaccine status, may enjoy protection in only a few states. One general principle, though, has long held true: each state’s list of protected classes only ever grows longer. That is, states often add protected classes but they virtually never take them away.
That changed this year, when Iowa’s legislature passed a bill that struck a class from the state’s list of protected classes: gender identity. As the bill’s opponents noted, this appears to be the first legislative action walking back an antidiscrimination protection for gender identity. Iowa’s governor suggested that the legislative change brought the state’s protections in line with federal law. But that’s not right. As employers well know, the U.S. Supreme Court addressed this question directly in 2020, in Bostock: when an employer fires a worker for being transgender, sex has played “a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Bostock remains good law, and even Iowa workers continue to enjoy Bostock’s protections. But this move by Iowa’s legislature reminds employers that the contours of antidiscrimination law vary state to state—and even legislative session to legislative session.
Question Corner
By Corey Hunter
Federal Leave for Child's Therapy
Q. We have an employee who’s asking to leave work early and use the last hour of her normal schedule to pick up her son and accompany him to therapy sessions that will take place two days per week for 12 weeks. Would this time off be covered by the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA)?
A. This time off would likely be covered by the Family Medical Leave Act (FMLA)but not the Americans with Disabilities Act (ADA).
The FMLA specifically allows for leave to care for a family member with a serious health condition. This rule extends to what’s known as “intermittent” leave—the type of arrangement described here, where leave is taken piecemeal. The ADA, on the other hand, focuses on accommodations for an employee’s own disability. It does not generally require an employer to provide leave for individuals without disabilities to care for loved ones with disabilities.
The Department of Labor considers many conditions requiring regular therapy sessions, including many mental illnesses, as serious health conditions that justify FMLA leave. Even so, an employer should verify employer and individual FMLA coverage before granting FMLA leave. An employer should also confirm whether an employee intends to take protected FMLA leave, including noting whether medical certification or a formal FMLA leave form has been submitted in accordance with employer policy. Lastly, an employer may wish to evaluate whether an employee has satisfied the FMLA requirement to provide 30 days’ notice of foreseeable leave, or as much notice as practicable for non-foreseeable leave. If 30-day notice is required but not provided, the employer may be permitted to deny leave until 30 days after notice.
