Horrible bosses aren't necessarily discriminatory bosses

We've all had that boss…

The one who's rude. Abrasive. Intimidating. The one who turns every interaction into a stress test.

But being a jerk is not, by itself, illegal.

That's the key lesson from the 3rd Circuit's recent decision in Gabriel v. DSM Biomedical: "Title VII bans discrimination and retaliation, not stressful offices or difficult bosses."

A disability is not a license to harass

Federal disability discrimination laws exist to ensure that people with disabilities are judged on their abilities—not their diagnoses. They require reasonable accommodations. They prohibit discrimination. They level the playing field.

What they do not do is excuse misconduct.

That's the important takeaway from Brantley v. University of Texas at Austin, a recent 5th Circuit decision that rejected a student's attempt to use the Rehabilitation Act as a shield against discipline for repeatedly harassing a professor.

The facts are difficult.

After taking one of the professor's classes, the student continued emailing him. Not once or twice. According to the court, hundreds of times.

The emails ranged from academic topics to deeply personal discussions of trauma, mental health, and self-diagnosis. The professor repeatedly tried to establish boundaries. He provided information about campus mental health resources. He asked that future communications be limited to academic matters. Eventually, he pleaded with her to stop contacting him altogether, explaining that the constant emails were causing him "a tremendous amount of distress."

She kept emailing.

The university ultimately placed her on disciplinary probation.

DEI is not a get-out-of-summary-judgment-free card — but it can become evidence of discrimination

A white man gets fired. His employer has a DEI program. Therefore, the DEI program caused his termination.

That argument has become increasingly common in employment discrimination cases. It's also usually not enough.

But Chavers v. WestRock Services shows what happens when a plaintiff brings more than complaints about corporate diversity goals.

When the boss gets involved, the investigation is already in trouble.

Last week, The New York Times published a deeply reported investigation alleging that Donald Trump personally intervened with FIFA President Gianni Infantino to have U.S. striker Folarin "Flo" Balogon’s red card suspended so he could play in the United States' World Cup Round of 16 match against Belgium.

Whether you're a soccer fan or not almost doesn’t matter.

The allegation is what matters.

The President of the United States allegedly used the weight of his office to influence what should have been an independent disciplinary decision. And according to the report, it worked.

That's not just a sports story. It's also a workplace investigation story.

Why your noncompete agreement could become "Exhibit A" in a discrimination lawsuit.

For years, employers have treated noncompete agreements as just another item in the onboarding paperwork. Hand over the offer letter, the handbook acknowledgment, the tax forms, and somewhere in the stack sits a restrictive covenant that employees sign without much thought.

The recently settled lawsuit against Boston Beer Company serves as a reminder that noncompetes rarely stay confined to contract disputes. They can become Exhibit A in a much larger employment-law battle.

The case was brought by several former sales employees who alleged gender discrimination, retaliation, hostile work environment, and unlawful noncompete practices. According to the complaint, Boston Beer required broad noncompete agreements for sales employees and aggressively enforced them against departing workers. The plaintiffs claimed those restrictions trapped employees in jobs they wanted to leave, prevented them from pursuing opportunities with competitors, and amplified the effects of alleged discrimination and retaliation.

Boston Beer denied the allegations. The parties have now settled.

The settlement itself doesn't establish liability. But the allegations offer several important lessons for employers.

"We'll look into it" is not a harassment response

An employee says a coworker sexually assaulted her at work.

Management says it will take the complaint seriously.

HR says it will be involved.

The employee says she is afraid to encounter the coworker again.

And then? According to a new lawsuit filed against the Atlanta Hawks and State Farm Arena, not nearly enough.

Tameika Hampton worked as an event security officer at State Farm Arena. She alleges that during an NBA YoungBoy concert, a coworker approached her from behind and pressed his genitals against her. Two days later, after a security captain noticed she appeared distressed, Hampton reported what had happened. The complaint says the report was escalated, she was told to submit it in writing, and management assured her that the matter would be taken seriously, HR would be involved, and her safety mattered.

Those are all the right words.

The lawsuit alleges the employer's actions did not match them.

Hampton claims she had to repeatedly follow up because HR did not timely communicate with her or schedule an interview. She alleges the interview did not occur until nearly a month later. Four days after that, the company allegedly closed the investigation, telling her the surveillance footage was too unclear to determine what happened. She also says the employer failed to give her clear safety protocols, failed to ensure she would not run into the accused coworker, and then scheduled them in a way that forced her to pass by him after a later shift, causing a panic attack.

And, according to the complaint, another female employee later accused the same coworker of similar conduct.

The defendants, of course, have not yet answered. These are allegations, not proven facts.

But the lesson for employers does not depend on how this case ultimately resolves.

When an employer learns of harassment, it owns the response.

Not the outcome. Not perfection. Not omniscience.

The response.

That means more than thanking the employee for coming forward and promising to investigate. It means acting immediately, communicating clearly, documenting thoroughly, and taking interim steps reasonably calculated to protect the complaining employee while the investigation runs its course.

In harassment cases, speed matters.

A delayed investigation is often no investigation at all. Memories fade. Video gets overwritten. Witnesses disappear. The complaining employee loses trust. And the accused employee remains in the workplace, creating ongoing risk to the complainant, other employees, and the business.

A prompt investigation does not mean a rushed or sloppy investigation. It means starting immediately. Identify witnesses. Preserve video. Lock down schedules. Review prior complaints. Check personnel files. Interview the complainant. Interview the accused. Interview anyone who may have seen or heard anything relevant. Follow the facts where they lead.

And tell the employee what is happening.

You do not need to share every detail. You should not promise a particular result. But silence is poison. "HR will be in touch" followed by weeks of nothing tells an employee that the company does not care, even if people behind the scenes are doing work.

Interim protection also matters.

An employer that receives a credible complaint of sexual touching cannot simply leave the parties to navigate the workplace on their own. Separate them. Adjust schedules. Change reporting lines. Provide escorts if needed. Clarify who the employee should contact if there is a problem. Make sure the complainant does not have to keep asking whether she will be safe walking to her car.

And be careful with the word "safe."

If you tell an employee, "You will not have to work with him," then make sure she does not have to work with him. If you tell her, "You will not be near him," then make sure she is not near him. Broken safety promises are litigation gasoline.

Employers also need to understand the legal standard. When the alleged harasser is a coworker, the employer is generally liable if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action reasonably calculated to stop it.

That phrase, "reasonably calculated to stop it," is doing a lot of work.

It is not enough to check the box with an investigation. The response must be meaningful. If the accused remains employed, what guardrails are in place? If the evidence is inconclusive, what steps will prevent recurrence? If there are later similar complaints, will the employer reopen the investigation? If the complainant reports continued fear or trauma, how will the employer respond?

The law does not require employers to believe every complaint automatically. It does require them to take every complaint seriously.

That distinction matters.

Taking a complaint seriously means you do not prejudge it. You do not bury it. You do not slow-walk it. You do not make the complainant chase HR for updates. You do not treat unclear video as the end of the inquiry. You do not ignore scheduling realities. And you do not create a workplace in which the person who complained feels punished by having to manage her own safety.

Employers should have a harassment response playbook before the complaint arrives. It should include:

1. Immediate intake and documentation.
2. Preservation of evidence, including video, texts, emails, badge records, schedules, and prior complaints.
3. Prompt identification of interim protective measures.
4. A neutral investigator with authority and training.
5. Regular communication with the complaining employee.
6. A conclusion supported by facts, not vibes.
7. Corrective action tied to the seriousness of the conduct and the risk of recurrence.
8. Follow-up after the investigation closes.

The follow-up piece is often forgotten. It should not be.

After the investigation ends, ask whether the employee has experienced retaliation. Ask whether there have been further interactions. Confirm that protective measures are working. Make sure managers understand the boundaries. Then document all of it.

Harassment policies are only as good as the employer's willingness to enforce them when enforcement is uncomfortable.

Because when an employee reports sexual harassment, the employer has a choice.

It can treat the report like a compliance inconvenience. Or it can treat it like a workplace emergency that deserves urgency, care, and accountability.

Only one of those choices keeps employees safe and helps keep the employer out of court.

When employers gamble on bad facts, they usually lose

How does a case like this ever get to trial?

That was my first thought after reading Griffin v. Copper Cellar Corp.

Rose Griffin worked as a cook at a Tennessee restaurant. According to the 6th Circuit, one coworker repeatedly grabbed her breasts, arranged food at her workstation to look like an ejaculating penis, told her he wanted to have sex with her, pushed her down onto a prep station while thrusting against her, and stuck his hands down his pants while massaging himself in front of her.

This was not subtle workplace misconduct. It was repeated, physical sexual harassment.

Voluntary retirement incentives vs. age discrimination

Microsoft just gave corporate America a new playbook for thinning the ranks without ever uttering the words "layoff" or "older workers."

For the first time in its 51-year history, Microsoft is offering a voluntary retirement program. The eligibility formula? Your age plus your years of service must equal at least 70.

Do the math and the story tells itself. The youngest realistic participant is someone around 45 with 25 years at the company. In other words, this is a program designed—intentionally or not—to target older, long-tenured employees.

And just to make things more interesting, senior directors and above need not apply. This is aimed squarely at the middle layers of the organization.

So, is this illegal age discrimination?

A beast of a harassment lawsuit

Jimmy Donaldson, better known as YouTube's biggest star, MrBeast, is calling this lawsuit "clout-chasing," a grab for headlines and a payday.

Maybe.

But before you dismiss it, look at what's alleged—and what it says about two issues entirely within an employer's control.

Employers can no longer count on private arbitration when sexual harassment is on the docket

Employers love arbitration agreements. They keep disputes private and out of court.

Unless, that is, sexual harassment is in the case.

An Ohio appellate court just made that crystal clear in Hansbrough v. Marshall Dennehey.

Employers can't outsource discrimination to an algorithm

AI is new and shiny. Employment law is not.

Mobley v. Workday proves the point. The court concluded that employers don't get to outsource liability just because they've outsourced the tool to an AI vendor.

The plaintiffs, a nationwide class of job applicants over the age of 40, allege that employers' use of Workday’s AI-driven screening tools discriminates on the basis of age. Whether those claims ultimately stick is a question for another day. But the legal framework governing them is old, settled, and very familiar. Discrimination is discrimination—whether it's carried out by a hiring manager, a spreadsheet, or an outsourced algorithm.

Workplace investigations are hard. Until they’re not.

Workplace investigations are hard.

Witnesses forget. Memories conflict. Motives get murky. HR is left piecing together timelines, credibility, and intent from incomplete information, while everyone involved insists they did nothing wrong.

And then there are the easy ones.

Take the paramedic who now faces nearly two dozen criminal charges for allegedly urinating all over his workplace — on a supervisor's keyboard, into communal coffee creamer, an ice machine, orange juice, hand soap, ChapStick, canned vegetables, an air-conditioner vent, even a pot of chili. According to prosecutors, he didn't just do it. He filmed himself doing it. In uniform. Then allegedly posted the videos online to sell.

Union activity Is not a license to be abusive at work

Let's get something straight right out of the gate: employees have the right to organize. They also have the right to complain about work, staffing, and management decisions. What they do not have is a free pass to be abusive, vulgar, and demeaning toward coworkers and supervisors—union campaign or not.

That's what makes the Starbucks case now pending before the Fifth Circuit so frustrating.

If you can't force older employees to retire, how do you succession plan?

Employers face a legitimate—and growing—problem: if older employees aren't retiring on schedule (or at all), how do you plan for leadership transitions and future staffing needs without committing age discrimination?

The answer starts with recognizing that today's workforce doesn't retire the way it used to. Many employees expect to work past 65, often for financial reasons or because they want to stay active and engaged. Employers who build succession plans around outdated retirement assumptions are setting themselves up to fail.

What doesn't work (and is illegal) is pressure. You can't demote older employees, cut their pay, strip responsibilities, or make their jobs unpleasant in hopes they'll "choose" to retire. That’s not workforce planning—it's an age discrimination constructive discharge claim waiting to happen.

So, what does work?

Mangement discussion of an older worker's "retirement" as age discrimination

"When are you retiring?" That's not an employer's call to make.

Here's a rule that employers still manage to forget or ignore: the decision about when to retire belongs to the employee. Start nudging. Start hinting. Start asking. Start factoring it into employment decisions. And you're flirting with, if not outright committing, age discrimination.

An Ohio appellate court recently reinforced that lesson in Selzer v. Union Home Mortgage, reversing summary judgment for the employer and sending an age discrimination case back for trial.

Greg Selzer was a 64-year-old loan officer assistant. According to the record, his supervisors repeatedly pressed him about his retirement plans. Then came the email that mattered most: a vice president involved in the termination decision wrote that Selzer "keeps saying he will retire but hasn't." Another executive admitted that the purpose of that email was to justify why Selzer landed on the reduction-in-force list. And another employee confirmed that Selzer's proximity to retirement factored into the decision to terminate him.

The trial court bought the RIF explanation and dismissed the case. The court of appeals did not.

A plaintiff can prove age discrimination claims by direct or indirect evidence of discriminatory intent. In this case, the appellate court made clear that repeated inquiries about retirement when made by decision makers and tied to a termination decision qualify as direct evidence.

Yes, courts have said that merely using the word "retire" isn’t automatically discriminatory. But context matters. Here, the comments were frequent, made by supervisors, closely tied to the discharge, and—most damning—used as a justification for termination.

The employer argued it was just planning ahead. And believe me, I get it. When an employee eventually does retire, without proper succession planning, you could be caught off guard, scrambling to replace institutional knowledge and forced into a rushed and risky replacement decision. Courts, however, remain skeptical, and often recognize that "longevity" is just a proxy for age. Changing the label doesn't change the motive.

The takeaway for employers is simple:

Don't ask when employees plan to retire.
Don't speculate internally about retirement timelines.
And don't document retirement assumptions in RIF decisions.

Let employees retire when they choose. Support them in that decision. (I offer some tips on how to do that here.) Employees decide their retirement date. Employers don't get to decide for them—and those that try may find themselves staring down the barrel of an age discrimination lawsuit.

Clarity beats chaos: Why rescinding the EEOC’s harassment guidance is a mistake

Today at 10 a.m., the EEOC is scheduled to vote on whether to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. 

If the Commission votes "yes," it will be a terrible result for employers — not because the Guidance was perfect, but because clarity beats chaos every time.

The law is clear: protect your employees, not a problem customer

He's a regular. Spends money. Knows the beer list. The kind of customer small breweries are told they can't afford to lose.

But the female staff would disagree.

Over time, they start to notice things. Lingering looks. Comments that don't quite cross the line — but get uncomfortably close. Walking employees to their cars when no one asked him to. Nothing overtly sexual. Nothing you can circle in red and say, that's the moment. Just a steady accumulation of unease.

Then management learns something else: the customer is a registered sex offender. His offense? Sexually propositioning a minor.

If you aim to hit the legal floor, your workplace will always miss the mark

If your defense to a harassment complaint starts with "well, technically…" you've already lost — even if you win the lawsuit.

A recent Sixth Circuit decision, Wargo v. MJR Partridge Creek Digital Cinema, is the latest reminder that "not illegal" is a terrible benchmark for acceptable workplace behavior.

The court held that the manager's conduct toward a female subordinate — repeated dinner invitations, personal texts, following her in his car, blocking a door during an argument, even grabbing her arm for several seconds — didn't meet the very high bar for unlawful sexual harassment. The standard is "severe or pervasive."

Leadership always starts at the top

"Quiet, Piggy."

 
That's what Donald Trump said to a female reporter over the weekend aboard Air Force One in response to a question she asked him about the Epstein Files.

We should all agree that Trump's response was inappropriate, disgusting, and deplorable.

Now, let's take this story off of Air Force One and into your workplace. When an employee is confirmed to have said something like "Quiet, Piggy" to a coworker, management's path is straightforward and non-negotiable.

Target's new "smile" policy has some serious legal problems

You can't policy your way to happy employees. But Target sure is trying.

The retailer just rolled out its new "10-4" policy. Employees must now (1) smile, make eye contact, wave, and use "welcoming body language" within 10 feet of any customer, and (2) when within 4 feet, personally greet guests and "initiate a warm, helpful interaction."

We all appreciate good customer service. But from an employment law and HR perspective, this policy raises some serious red flags.