Monday, February 9, 2026

Federal court provides road map for lawful DEI programs


I keep getting asked how employers can legally maintain DEI programs in today's political climate. A federal judge just answered that question in a lawsuit the Missouri Attorney General brought against Starbucks—and in dismissing it, handed corporate America a roadmap.

The AG argued Starbucks' DEI policies were illegal because they "favored" BIPOC, women, and LGBTQ+ employees through mentorship, affinity groups, partnerships, and "quotas" tied to executive pay.

The court held that allegations without facts are just theories—and theories don't establish jurisdiction or liability.

Friday, February 6, 2026

WIRTW #788: the 'it's a beautiful day' edition


When I was a kid, Mr. Rogers' Neighborhood wasn't background noise. You sat on the floor. You watched. You waited for him to come through the door, change his shoes, and pull on that cardigan. Nothing flashy happened. No one was mocked. No one was humiliated. No one "won."

And yet, by the end, you felt steadier.

It took me years to understand why. Fred Rogers wasn't just entertaining children. He was teaching empathy—carefully, intentionally, and without irony. Which is why I keep coming back to this thought: we need a sociological study comparing the empathy of adults who grew up on Mr. Rogers' Neighborhood with those who didn't.

Because empathy feels like the missing muscle in American society right now.

Every episode opened with a simple, disarming truth:

"I like you just the way you are."

Not if you earn it.
Not if you agree.
Not if you fit in.

Just: you matter.

That idea once felt obvious. Today, it feels almost subversive. We sort people by usefulness, loyalty, productivity, and tribe. Empathy gets rationed. Compassion gets qualified. Caring about the “wrong” people is treated as a flaw.

Rogers never hedged.

"You are worth caring about."

That's where empathy begins. And when a society stops teaching that lesson, it doesn't become tougher or more realistic. It becomes colder—and easier to harden.

Rogers also understood that empathy requires emotional literacy. You can't recognize pain in others if you've been taught to deny it in yourself. On his show, he talked openly about fear, anger, sadness, and loss—not to inflame them, but to name them.

"When we're frightened, we tend to lash out at others."

That isn't politics. It's human behavior. When empathy erodes, fear rushes in. And fear doesn't make people wiser or stronger. It makes them reactive.

Rogers' answer wasn't suppression or denial. It was honesty.

"The thing that is mentionable becomes manageable."

That lesson applies to adults as much as children. Societies that can't talk honestly about discomfort don't become resilient. They become brittle.

Empathy also shapes how we see one another.

"The neighbors you find are the neighbors you look for."

If you go looking for threats, you'll find them. If you go looking for people, you'll find those too. One path leads to suspicion and withdrawal. The other leads to restraint and connection.

And empathy doesn't require unanimity.

"We don't have to think alike to love alike."

That sentence feels almost antique now, which should worry us. We increasingly treat disagreement as disqualification and difference as danger. Rogers offered a quieter alternative: coexistence without dehumanization.

He never framed empathy as weakness. He treated it as a civic skill—something to be taught, practiced, and protected. A society held together by empathy doesn't need as much fear or force to function.

Which brings us to where we are.

The erosion of empathy doesn't just harden people; it makes them easier to lead by fear. When compassion is framed as weakness, it leaves a vacuum. And something always rushes in to fill it.

So yes, fear still matters. But it's a consequence, not a cause. Fear is downstream of the deliberate erosion of empathy. When people are taught not to care, cruelty becomes easy. And when empathy disappears, bad ideas don't have to work very hard.

Fred Rogers never talked about politics. He didn't need to. He was doing something more basic: teaching children how to live with other people without losing their humanity.

America didn't lose its way because we cared too much.

We lost it because we stopped treating empathy as a strength.

Empathy isn't softness. It's social infrastructure. It's our superpower. And any culture that mocks it shouldn't be surprised when things start coming apart.



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

Thursday, February 5, 2026

Just Subpoena It.


This week, the EEOC sent a strong message to corporate America when it went to federal court to force Nike to turn over years of documents tied to allegations that its DEI programs discriminated against White employees.

The EEOC isn't suing Nike for discrimination—at least not yet. Instead, it has filed a subpoena enforcement action after Nike allegedly refused to fully comply with an investigation that reaches back to 2018. According to the agency, Nike's "DEI-related 2025 Targets" and other initiatives may have resulted in race-based decision-making in hiring, promotions, layoffs, internships, and mentoring and leadership-development programs.

Wednesday, February 4, 2026

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.

Tuesday, February 3, 2026

When does $5,000,000 not equal $5,000,000?


Elizabeth Graham worked as a benefits generalist in the human resources department of Bristol Hospice Holdings. She filed (and later withdrew) an EEOC charge alleging age and sex harassment. A couple of months later, during an acquisition integration, the company accused her of blowing off a training assignment (and then lying about it). The VP of HR terminated her — allegedly for insubordination and falsifying what happened.

A federal court jury just awarded her $5,000,000 in punitive damages, on top of $75,000 in non-economic compensatory damages. That punitive award will never last.

Friday, January 30, 2026

WIRTW #787: the 'accidents will happen' edition


"I think you just hit somebody."

That's what Mitch Goldstein said to me one cold morning in the winter of 1990. It was our senior year of high school, and I was driving us to school.

I had felt the bump.
"A car?" I asked.
"No," he said. "Some body."

He was right. My car had clipped a person—Delores Ritchie.

I was turning left from Audubon Ave. onto Tomlinson Rd. It was cold, and the windshield of my parents' powder-blue Subaru wagon was still partly iced over. Tomlinson runs east–west, and as I turned into the eastbound lane, the rising sun's glare blinded me just long enough.

Ms. Ritchie had the same problem. She had pulled over about a hundred feet past the intersection to scrape ice off her windshield. She was standing in the lane of traffic, on the driver's side of her car, when my passenger-side mirror clipped her.

I never saw her.

The police came. She left in an ambulance. Mitch and I went to school.

A few months later, as I left the public library next to George Washington High School, there she was—Delores Ritchie—standing at the circulation desk, chatting with the librarian.

I walked toward her to ask how she was doing, and then I heard this: "I was in an accident. A car clipped me and knocked me to the ground. I'm OK, but my lawyer wants me to keep going to doctors to run up my damages."

True story.

I slipped past her without being seen. I went home and told my dad what I'd heard. He told our lawyer.

The lawsuit disappeared.

Here's the lesson: if you're involved in litigation, watch your mouth. You never know who's listening—or when it will matter. Every offhand remark is potential evidence. Today's small talk can end your case tomorrow.

As for car accidents, that one was my first, but not my last. My daughter, Norah, away at college, was just in her first. To hear that story (and I promise it's just as good), listen to this week's episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, YouTube, Overcast, Amazon Music, in your browser, and everywhere else you get your podcasts.



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

Thursday, January 29, 2026

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?

Wednesday, January 28, 2026

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.

Tuesday, January 27, 2026

Can you spot the difference between coincidence and retaliation?


Have you heard about the small toy store owners in St. Paul, MN, who complained about ICE on their local news. They went on camera. They criticized ICE. Loudly. Publicly. Three hours later, two plainclothes ICE agents reportedly walked into the store and served a Notice of Inspection—an I-9 audit request.

And we're supposed to believe that timing is just… coincidence?

This is what retaliation looks like.

Thursday, January 22, 2026

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.

Wednesday, January 21, 2026

Dry January isn't a moral virtue or wellness trend. It's an economic gut punch.


Every January, like clockwork, Dry January comes roaring back.

If you want to take a month off drinking, good for you. Truly. Your body, your goals, your choice. No judgment, and it shouldn't be anyone else's business either.

But we also need to stop pretending Dry January is harmless.

For a whole lot of craft breweries, Dry January isn't a "challenge." It's a revenue problem. A jobs problem. A "can we make payroll in February" problem.

Tuesday, January 20, 2026

The 1st nominee for The Worst Employer of 2026 is … The Harassing, Retaliating, Evidence-Erasing Employer.


If you're looking for the blueprint for how to turn a workplace into a legal catastrophe and land on my Worst Employer list, look no further than Bryant v. C&M Defense Group. A jury just awarded Makita Bryant $5.5 million after what reads less like an HR failure and more like a master class in how to do everything wrong.

Friday, January 16, 2026

WIRTW #786: the 'propaganda' edition


What the hell is going on at the Department of Labor?

On January 10, the DOL posted this on X: "One Homeland. One People. One Heritage. Remember who you are, American."


Read that again. Slowly. If that doesn't make the hair on the back of your neck stand up, it should.

Myriad people immediately flagged the post as sounding eerily similar to one of the Nazi Party's central slogans — "Ein Volk, ein Reich, ein Führer" (one people, one realm, one leader). And they're not wrong to hear the echo. Even if you want to give the DOL every possible benefit of the doubt (you shouldn't), the vibe is unmistakable: nationalist propaganda, identity worship, and "blood and soil" messaging dressed up as patriotism.

And it wasn't even that subtle. The post was paired with a black-and-white montage of Revolutionary-era imagery and propaganda-style art — the kind of aesthetic authoritarian movements love because it sells nostalgia, certainty, obedience, and "purity" in one neat package.

Keep in mind, this is the Department of Labor. Its job is supposed to be enforcing wage-and-hour laws, protecting workplace safety, ensuring fair labor standards, and helping people get employed and trained. Not cranking out memes that wink at fascist tropes and flirt with Nazi-era rhetoric, slogans, and iconography.

This isn't happening in a vacuum. Union leaders and historians are sounding alarms about a "rhetorical shift towards white supremacy" within the federal government, with campaigns featuring idealized, mostly White male workers, "Americanism" over "globalism," and messaging designed to convince the "real Americans" that only people like them belong. Indeed, ICE is recruiting potential agents with the tagline, "We'll have our home again," a lyric tied to white nationalist groups.

When federal agencies start talking like this, it's not "patriotism." It's not an accident. It's propaganda — and it's the point.



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

Wednesday, January 14, 2026

When “irreparable harm” isn’t: 8th Circuit slams brakes on a noncompete injunction


Employers love preliminary injunctions in restrictive covenant cases. And courts are supposed to grant them only in extraordinary circumstances.

The 8th Circuit just reminded everyone what "extraordinary" actually means.

Tuesday, January 13, 2026

Filing an EEOC charge doesn’t automatically buy an employee job immunity


Some believe that once an employee complains to the EEOC, discipline must stop. Supervisors must tread lightly. Performance problems must be ignored.

The 4th Circuit just reminded everyone that's not how Title VII works.

In Andrews v. DeJoy, the court affirmed summary judgment for the Postal Service on a retaliation claim brought by a clerk who had a long history of documented performance problems — both before and after she filed an EEOC complaint.

After loudly clashing with her supervisor and being escorted from the building by police, the employee, a clerk, filed an EEOC charge. After her post-suspension return to work, management continued documenting attendance issues, insubordination, and performance deficiencies, eventually issuing a notice of removal (later reduced to a suspension through arbitration).

She sued, claiming retaliation. She lost.

Friday, January 9, 2026

WIRTW #785: the 'sometimes a coffee cup is just a coffee cup' edition


Arsenal–Tottenham is one of the nastiest rivalries in sports. If you don't follow English football, think Eagles–Cowboys, Yankees–Red Sox, or Ohio State–Michigan, and then crank it up a notch or ten. London neighbors. More than a century of history and hatred.

Which is why it was a really, really big deal earlier this week when Thomas Frank, Tottenham's manager, was photographed holding a coffee cup with an Arsenal logo on it.

Social media lost its mind.

By all accounts, it was an accident. Spurs were away at Bournemouth. Arsenal had just played there over the weekend. Frank grabbed a cup from the away dressing room without noticing it belonged to his club's biggest rival. Asked about it, he responded the only way he could: "Of course I wouldn't do that. That would be really stupid." He added that with Spurs not playing well, it would be "absolutely stupid" for him to focus on something so trivial instead of the football.

Fair enough. Especially when the Arsenal sit 22 points clear at the top of the table and Spurs are mired in 14th.

Your workplace could have its own version of this moment. The trade show photo. The LinkedIn post. The Instagram story that lives forever in screenshots. There's your employee—company badge on—wearing the wrong quarter-zip. Holding a competitor's tote bag. Standing a little too close to a rival's booth. Marketing panics. Leadership fumes. Someone asks whether "this is a problem."

Start with the obvious question: Was it intentional? Most of the time, no. Swag is everywhere. People grab what's clean, warm, or nearby. That's not disloyalty. It's human.

Next question: Was there any real harm? Did a customer complain? Did a deal fall apart? Or did only internal pride take a hit? If the damage is theoretical or ego-based, you're already flirting with overreaction.

Then ask the most important question: What culture are you reinforcing? If you treat honest mistakes like acts of betrayal, employees learn to hide things—or to stop using judgment altogether. A quiet reminder about branding expectations is reasonable. Discipline usually isn't. Sure, if an employee is deliberately promoting a competitor or repeatedly ignoring guidance, that’s a different conversation. But earn that conclusion with facts, not outrage.

Not every rival logo is treason. Sometimes it's just the wrong cup in the wrong locker room. Sometimes a coffee cup is just a coffee cup.

And for the record…

Up the Arsenal! Come on you Gunners!



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

Thursday, January 8, 2026

4 solid steps to win your disability discrimination/reasonable accommodation case


The 6th Circuit just delivered an opinion that reinforces two lessons employers should already know: accommodations require clarity and documentation, and timecard falsification is a litigation killer.

Energy Harbor Nuclear Corp. reassigned a maintenance supervisor with nearly 30 years of service to 12-hour night shifts. He complained that the schedule was worsening his Type 2 diabetes, specifically that the night shift was "killing" him. Management told him to provide medical documentation if he needed an accommodation. Upon his presentation of a doctor's note, the company moved him to day shift as requested.

Then came the problem. The company audited his outage time entries against objective badge-swipe data from the plant's protected area. The audit revealed discrepancies in 21 of 26 entries, including 10 overstated by more than 30 minutes. Management interviewed him (with a witness present), reviewed security data, escalated the issue to HR, and a separate internal review team conducted its own investigation. The company fired him for falsifying time records.

He sued for disability discrimination, failure to accommodate, and retaliation.

Wednesday, January 7, 2026

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.

Tuesday, January 6, 2026

The question isn't whether your employees are using AI at work (they are), but whether you're prepared for it


Employees using AI at work will be the workplace issue of 2026.

Not remote work.
Not noncompetes.
Not DEI.

AI.

Because employees are already using it — to draft emails, summarize documents, create work product, prepare presentations, and even help with performance reviews — whether employers have approved it or not.

And most companies are completely unprepared.

Monday, January 5, 2026

A tale of two (alleged) sexual assaults


A popular Cleveland restaurant and a popular Charlotte brewery chose very different paths after their owners were accused of sex-based crimes.

After rape charges were filed against the owner of Cleveland's TownHall, the owner's response was to fight—attack the prosecution, question the process, threaten legal action, and keep operating as usual. The framing was unmistakable: this was a legal fight, not a business crisis.

In contrast, after the owner of Charlotte's Sycamore Brewing was charged with raping a 13-year-old child, the response went the other direction. Leadership changed. The owner was removed. Divestment was announced.

And this week, Sycamore went further. Its taproom will close beginning today—not because the business committed any wrongdoing, but to allow for community healing and reflection. The current owner publicly expressed concern for the alleged victim, confirmed the complete removal of her former partner from the business, and made clear that Sycamore's future must align with the values of the community it serves.