DOJ's attack on disparate impact gets Title VII exactly backwards

The Department of Justice just issued a legal opinion claiming that disparate impact liability is unconstitutional because it supposedly "incent[s] — and even coerce[s] — employers to make race-based decisions to avoid liability."

That's a remarkable claim.

It's also a fundamental misunderstanding of how disparate impact law actually works.

Disparate impact claims exist precisely because they target facially neutral policies. No one is alleging intentional discrimination. No one is claiming that an employer adopted a policy because of race, sex, or some other protected characteristic.

The entire point of disparate impact is that a neutral rule can nonetheless operate as an unnecessary barrier to employment opportunities.

Unpaid leave is an ADA reasonable accommodation; it just can't be the only one you offer

If your ADA accommodation policy starts with "take unpaid leave," you're doing it wrong.

Just ask the 15 Dunkin' Donuts franchisees that recently agreed to pay $250,000 to settle an EEOC disability discrimination lawsuit.

According to the EEOC, these franchisees maintained a policy that refused to provide reasonable accommodations to employees with medical restrictions. Instead, workers were placed on unpaid, indefinite leave until they could return to work with no restrictions whatsoever. In other words, if an employee wasn't "100% healed," they weren't working.

The EEOC calls this a "100%-healed" policy. The ADA calls it unlawful.

The EEOC's new Enforcement Plan is way more politics than strategy

The EEOC has replaced its 2024-2028 Strategic Enforcement Plan with a new National Enforcement Plan for 2025-2029. The change is more than cosmetic. It reflects a significant shift in what the agency believes its mission should be.

To be clear, intentional discrimination against anyone because of race, sex, religion, national origin, age, disability, or any other protected characteristic is unlawful. Full stop. Title VII protects everyone. An employer cannot justify discrimination simply because it occurs in the name of diversity, equity, or inclusion.

But that's not really the story here.

The story is what the EEOC has chosen to prioritize.

WIRTW #800: the 'world cup' edition

The World Cup kicks off on June 11, and plenty of matches will be played during the workday. (June 17, I'm looking at you. Portugal vs. DR Congo starts at 1 p.m. ET, followed by England vs. Croatia just three hours later.)

So what's an employer of football-loving employees to do?

Nick Mohammed, of Ted Lasso fame, has a suggestion. He's released a tongue-in-cheek video called Fight for Your Right to Watch the 2026 FIFA World Cup at Work.

I'm not suggesting employees spend the next six weeks with one eye on their work and the other on a World Cup stream.

Then again, I'm not exactly suggesting they don't, at least for games that matter to them.

Instead of treating the World Cup as six weeks of lost productivity, smart employers might view it as six weeks of culture-building. A lunchtime watch party. A company bracket. National team jerseys on match days.

If employees are going to be paying attention anyway, you might as well harness the enthusiasm rather than police it. Productivity might dip for 90 minutes, but morale and goodwill can last a lot longer.

---

Here's what I read this week that you should read, too. 

Ohio's new ethics guide — Artificial Intelligence for Lawyers and Judicial Officers — leaves one big question unanswered

Ohio's new AI Ethics Guide for Lawyers is worth reading.

It tackles many of the questions lawyers have been asking since generative AI entered the mainstream: competence, confidentiality, client communications, billing, hallucinated citations, supervision, and judicial use of AI.

First, credit where it's due. Ohio deserves praise for stepping into a conversation that many jurisdictions have been reluctant to have. Lawyers are hungry for practical guidance on AI, and doing nothing is no longer an option. The Ohio Board of Professional Conduct deserves recognition for taking a serious run at a rapidly evolving issue.

Which is why one part of the Guide surprised me. On the question of whether lawyers can ethically disclose client information to AI platforms, the guidance seems to say both yes and no.

A helpful tip on the FLSA's tip credit

For many craft breweries, the taproom is where the magic happens. It's where customers connect with your brand, your beer, and your people. 

It's also where wage-and-hour lawsuits often begin. 

Artisanal Brewing Ventures, the company behind Southern Tier, Victory, and other craft beer brands, is facing a nationwide collective action over its pay practices at 15 taprooms across five states. At the heart of the lawsuit is an issue that too many hospitality employers overlook: compliance with the Fair Labor Standards Act's tip-credit rules. 

🎶 With my mind on my Title VII and Title VII on my mind. 🎶

Barbie Bassett, a longtime white news anchor for WLBT, lost her job after two on-air comments her employer deemed racially offensive. First, she referred to a Black reporter's grandmother as "grand m*mmy." WLBT received viewer and employee complaints and gave Bassett a written warning.

Less than six months later, during an on-air segment about Snoop Dogg, Bassett dropped the phrase, "fo shizzle, my n**zle." A Black co-anchor immediately told her, "I can't believe you just said the N word on live TV."

Complaints followed, as did national media, and then Bassett's termination.

She sued, claiming race discrimination. Her argument was, basically, WLBT fired her because she was white, relying heavily on testimony from the station's general manager that "there are some things that Black people can say that White people can't say."