Employment & Labor Insider

I’ll keep this short so you can get to your long weekend. There have been four hot developments in employment law. Here’s the scoop:

"You don't have a leg to stand on, Ma'am, but your husband has a very strong case."

No. 1: "Are you or a loved one a white male? Call now for a free consultation. You don't pay unless we win." The Trump Administration is looking for white men who want to pursue so-called “reverse discrimination” claims. Andrea Lucas, Chair of the U.S. Equal Employment Opportunity Commission, recently posted a video in which she encouraged white males who believe they were discriminated against to file charges with the agency. Harmeet Dhillon, Assistant Attorney General for the U.S. Office of Civil Rights, not infrequently offers to look into reverse discrimination allegations made by posters on X.

According to Bloomberg, the Administration hasn't had a lot of success finding litigious white males, but there's still time.

Please note that although I'm kidding a bit here, "reverse" discrimination is a real thing, and it is against the law. Employers, if you are discriminating against anyone -- even members of the "majority" -- stop it now! You won't go wrong hiring (or promoting) the most qualified individual for the job.

A few bricks shy of a quorum?

No. 2: Appeals court will review validity of Pregnant Workers Fairness Act. The statute itself – not regulations or guidance. After the PWFA was enacted, the State of Texas filed suit, contending that the PWFA could not be enforced against the State in dealing with its own employees. The State argued that the PWFA was invalid because the House of Representatives did not have an in-person quorum when the law was enacted. (The link immediately below has details about the quorum argument.)

A Trump-appointed federal judge in Texas agreed with the State in a decision issued in February 2024. The Biden Administration appealed, and the Trump II Administration continued with the appeal. This past August, two judges on a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed, saying the PWFA vote was valid. The judges in the majority were Obama appointees, and a Trump appointee dissented.

Which brings us to this week. The judges on the Fifth Circuit have decided that all 17 of them will rehear the appeal, and they vacated the August 2025 panel decision.

If the full Fifth Circuit ultimately strikes down the PWFA on the ground that it was invalidly enacted because Congress didn't have a quorum, that could be huge. The Fifth Circuit decision would apply only to employees of the State of Texas, but other states and private sector employers would have every reason to file similar challenges. Also, the PWFA was not a standalone law – it was part of omnibus legislation that also included the PUMP for Nursing Mothers Act (which is enforced by the U.S. Department of Labor). I’m not aware of any legal challenges to the omnibus legislation, but if one comes along, that could result in the invalidation of the whole kit and kaboodle – including the PWFA, the PUMP Act, and a lot of other laws.

And/or the case might wind up at the Supreme Court. Probably will.

No. 3: EEOC will meet to discuss scrapping transgender harassment guidance. I reported last week that the EEOC sent to the Office of Management and Budget a request to rescind guidance on workplace harassment that was issued in 2024 during the Biden Administration. We believe that the EEOC’s main objections to the Guidance are the provisions relating to transgender harassment (name and pronoun use, and shared private spaces) and pregnancy-based harassment as it relates to abortion.

Bloomberg Law reported yesterday that the EEOC will hold a meeting this Thursday,  January 22, to discuss scrapping the transgender harassment guidance. Since the proposed rescission of the Guidance was submitted to the OMB in late December, I assume the topic at the meeting next week will be not whether but how the agency will go about standing down on these claims.

"Haha. Just kidding."

No. 4: Secretary of Labor not the World’s Best Boss? The irony! According to the New York Post, Secretary of Labor Lori Chavez-DeRemer and two of her deputies are the subject of an employee complaint submitted to the Office of the Inspector General for the U.S. Department of Labor. The complaint reportedly alleges that the Secretary is in an “inappropriate relationship” with a subordinate, drinks (champagne, bourbon, and Kahlua) in her office during the regular workday, and asks her deputies to invent “work-related” trips so that she can visit family and friends at the expense of the taxpayers. She was also reportedly described more generally as the “boss from Hell.” The Secretary and the Trump Administration deny the allegations, and the two deputies are on administrative leave while the investigation takes place.

Finally, don't forget the "reason for the season." I wish you all very happy Martin Luther King holiday!  

"Hate cannot drive out hate. Only love can do that."                                                                                    --The Rev. Dr. Martin Luther King, Jr. (January 15, 1929-April 4, 1968)