The legal and regulatory landscape surrounding workplace harassment is shifting rapidly, leaving many HR professionals wondering how to stay compliant while maintaining a fair and inclusive work environment. Karen M. Morinelli and Lara J. Peppard, attorneys at Ogletree Deakins, warn that with the recent changes to EEOC leadership, evolving interpretations of federal laws and new executive orders, HR teams must be prepared to endure heightened scrutiny and conflicting guidance.
The evolving legal framework
Recent updates to federal enforcement policies have created challenges and opportunities for HR professionals. The EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace, passed by a narrow vote, expands protections against harassment, including provisions related to gender identity. However, the new acting chair, Andrea R. Lucas, has openly opposed these interpretations and initiated reviews to remove what she describes as “gender ideology” from EEOC materials.
Additionally, President Trump’s Executive Order 14168 directs federal agencies to define sex as immutable and binary, which could impact workplace policies related to gender identity and inclusion. Meanwhile, a federal court ruling has temporarily blocked efforts to dismantle diversity, equity and inclusion (DEI) programs, leaving employers in limbo over how to proceed.
For HR, the key takeaway is clear: Compliance with existing anti-discrimination laws remains essential, but policies may need to be revisited frequently as the legal landscape shifts.
Defining and addressing workplace harassment
While laws and interpretations may be changing, the core definition of workplace harassment remains consistent. Unwelcome conduct based on a protected characteristic—such as race, gender, sexual orientation, disability or age—crosses into unlawful harassment when it becomes severe or pervasive enough to create a hostile work environment or impact employment conditions.
Common examples include:
Virtual environments present new challenges, as conduct that may have been overlooked in traditional office settings—such as inappropriate comments in chat platforms or video calls—can now be documented and scrutinized. HR should ensure that remote work policies address online harassment with the same rigor as in-person interactions.
Next steps for HR teams
HR professionals must be proactive in adapting to these changes by:
Taking on workplace harassment policies in today’s uncertain climate requires HR professionals to remain vigilant, informed and adaptable. By taking decisive action now, organizations can protect employees, maintain compliance and uphold a fair workplace culture—no matter how the legal landscape shifts.
Supplemental materials for LEAP 2025 session Crafting Legally Compliant Job Descriptions
Job descriptions are the cornerstone of communication between management and staff. Good job descriptions make sure bosses and employees alike know what kind of performance is expected. They’re the basis of every effective performance-appraisal system.
Carefully drafted job descriptions can help you if an employee sues you. For example, a court considering an ADA lawsuit will review what the organization has identified as the job’s “essential functions” to see if the charges have merit. Without a written job description, the court may decide for itself which functions are essential.
Some job descriptions can be brief; others might require several pages. At a minimum, a job description should include these elements:
Title of position. Titles carry a great deal of weight in the workplace—and in court. Ensure the title matches the level of authority and responsibility. Ensure consistency throughout the organization. For example, all administrative assistants should be doing roughly comparable work.
Avoid offering inflated titles for everyday work. If you call your shipping clerk the “director of distribution,” a court hearing a discrimination case may wonder why she isn’t being paid the same as other “directors.”
Department/supervisor. Include the title of the employee’s direct supervisor, the department name and other identifying details that separate this position from others. Refer to supervisors by job title, not the names of the people who currently hold those positions.
Essential functions/qualifications. An item-by-item list of the job’s duties and responsibilities is the core of the description. To identify essential functions, look at the purpose of the job, the frequency with which each function is performed and the consequences if that function isn’t performed properly.
Four key categories to consider:
1. Physical skills (e.g., standing, walking, lifting, bending)
2. Learned skills (e.g., equipment proficiency, industry experience)
3. Job duties (e.g., travel, hours, shifts)
4. Behavioral skills (e.g., communication, leadership, time management)
The job description should also include the nonessential and less-frequent job duties and functions.
Results expected. Duties are just half of the equation. What do other employees, departments and customers count on this person to do? Include expectations relating to deadlines, customer service and company success.
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See other supplemental materials available.
Under the ADA, employers don’t have to go along with an accommodation that is unreasonable—one that, in the terminology of the ADA, “causes an undue hardship.”
If you reject what you consider an unreasonable accommodation, be ready to explain—to the disabled employee and, possibly to a judge or jury—why you believe the accommodation would cause undue hardship.
To do so, gather supporting data in the following areas:
Nature and net cost of the accommodation needed
The cost is the actual cost to your company. Remember that specific federal tax credits and deductions are available for accommodations required by the ADA.
Also, sources of funding are available to help pay for some accommodations. If you qualify for a tax credit, deduction or partial funding for an accommodation, only the net cost to you should be considered.
Various financial factors
Your organization’s financial resources, the number of employees at your facility and the financial impact of the accommodation all can be considered. If you have only one facility, the cost and impact of the accommodation will be considered in relation to the effect on expenses and resources of that facility.
Type of operation
This includes the structure and functions of the work force and the geographic, administrative or fiscal relationship to the larger entity of the facility involved in making the accommodation.
For example, an independently owned fast-food franchise that receives no funding from the mother company can argue that it would be too expensive to provide an interpreter so a deaf applicant could work as a cashier. The parent company’s resources don’t have to be factored in.
Impact of the accommodation on the facility
This involves how the accommodation would affect other employees’ job performance and your ability to conduct business.
Let’s say someone with a visual impairment applied for a job as a nightclub server. The club maintains dim lighting to create an intimate setting and lowers its lights further during the floor show. If the applicant requested bright lighting as an accommodation so she could see to take orders, you could assert that this would be an undue hardship, since it would seriously affect the nature of the operation.
Online resource: Employers can find accommodations for many disabilities at the Job Accommodation Network site, which is maintained by the Department of Labor’s Office of Disability Employment Policy.
Advice: When confronted with an accommodation situation, use the askjan.org website and document all the steps you take. Courts will have a hard time ruling against an employer that evaluated every accommodation listed on the JAN site.
Supplemental materials for LEAP 2025 session Crafting Legally Compliant Job Descriptions
It’s essential to have solid job descriptions that outline exactly what every employee is supposed to do. Without a good job description, a disabled employee can argue that very little about a job is essential—and therefore that they don’t have to do much work.
With a job description that lists essential tasks, it’s much easier to argue the employee’s disabilities cannot be accommodated.
Recent case: Pamela, an HR assistant for the Department of Homeland Security (DHS), suffered from many medical conditions, including chronic ear disease, severe depressive disorder, anxiety and neurological pain syndrome. Her performance evaluations noted that she needed to improve in many areas her supervisors considered essential to success.
Pamela became anxious about her job and requested reasonable ADA accommodations. She also took 12 weeks of FMLA leave.
When it was time to return, she presented a doctor’s note that said she needed to work in a less stressful position. When Pamela again requested accommodations, DHS sent her doctor a copy of her job description and asked which tasks she could perform. He checked “no” on a long list of tasks, including many requiring concentration such as:
The DHS concluded Pamela could not be accommodated and that no open positions existed that would fit her medical restrictions. She applied for disability retirement status and was approved—but she also sued, alleging failure to accommodate.
The court tossed out her case. It reasoned that DHS had shown that Pamela’s restrictions meant she couldn’t perform much of her job. Accommodating her was unreasonable. (Duray v. Johnson, No. 12-2800, DC MN, 2016)
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
If your organization is like most, you prefer to promote from within. Here’s a good, three-step process for making sure your promotion process doesn’t trigger a lawsuit:
1. Make sure your job descriptions are up-to-date and accurate. Ensure they identify all the essential job functions, education and training requirements and other important factors such as shift and overtime requirements. Always review them before posting a promotion opportunity.
2. Then, tailor the job announcement to match the job description. This accomplishes three important objectives. It encourages as many qualified internal applicants as possible, and it dissuades those who are only marginally qualified. But most importantly, it spells out the objective criteria you will use to decide if internal candidates are qualified for the job.
3. Finally, screen each application to make certain they meet the minimum requirements. Rank them all (or just the top few if there are many candidates) by how well their résumés meet the qualifications. Now you’re ready to choose the most highly qualified employees to consider. Go ahead and begin the interview process.
If you play your cards right, not only will you have selected the best applicant to promote, but also you will be able to easily justify your selection if a disgruntled and rejected employee sues.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session You’ve Been Sued: How to Prepare and Prevail
Some laws carry the prospect of personal liability. What does that mean? Laws like the FMLA and the Fair Labor Standards Act permit employees to sue individuals—not just employers—including HR professionals.
The practical impact: You could wind up having to forfeit personal assets—including your house, car and savings—if a court finds that you violated the law.
If you are ever personally sued by an employee, here is what you must do right away:
1. Contact an attorney. Immediately talk to your organization’s legal office and your own attorney. “Immediately” is the operative word. Lawsuits include strict deadlines stating when parties must respond. Missing one of those deadlines can mean instant liability—with almost no possibility of appeal.
2. Contact your employer’s insurance carrier. Insurers often provide legal counsel and work closely with company attorneys to prepare a defense. If you carry individual liability coverage, contact your insurance carrier or agent.
3. Clarify who will defend you. Find out if your organization will supply and pay for your defense. Most companies will stand behind you if you were acting on their behalf. If you have an employment contract, review it to see if you’ll be indemnified for any damages you are ordered to pay. If you have no written contract, try to secure your employer’s intentions in writing.
Final tip: If the case settles, make sure the settlement covers you as well as the organization. This is another reason to have your own attorney review all documents.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session You’ve Been Sued: How to Prepare and Prevail
Memo
Re: Employee Lawsuit Risks
When it comes to employment law, it’s always easier—and less expensive—to learn from others’ mistakes rather than your own. Here are five recent court cases that serve up good lessons for any manager:
1. Nix the nicknames: ‘Grandma’ and ‘Hank’ will get even
The case: Soon after a 54-year-old employee who’d worked at an electronics store for 17 years was demoted, she sued for age discrimination. Her evidence? A new supervisor had the habit of calling her “Grandma” and suggesting that she retire to spend time with her grandchildren. The court agreed, saying, “Calling someone ‘Grandma’ does suggest ageism.” (McDonald v. Best Buy, DC IL)
In another case, a supervisor insisted on referring to employee Mamdouh El-Hakem as “Manny,” saying the name would help him do better with clients. The employee protested, so the supervisor started calling him “Hank.” As you can guess, the employee sued for racial discrimination and the court agreed. (El-Hakem v. BJY Inc., 9th Cir.)
The lesson: Avoid attaching to employees nicknames that carry even the perception of being tied to a protected characteristic, such as race, age, gender, religion, national origin or disability.
2. Inconsistent discipline: A sure loser in court
The case: An employee of Indian descent felt she was criticized for her work mistakes far more harshly than her white co-workers. So she set out to prove her thesis. She kept a notebook and tracked when she was critiqued compared with her colleagues.
When she was fired for insubordination, she sued, saying that the real reason was national-origin discrimination. The court sent the case—and the woman’s notebook—to a jury trial. (Reddy v. The Salvation Army, SD NY)
The lesson: Trouble will come to supervisors who issue oral and written rebukes to certain employees yet overlook the same actions by co-workers. Such inconsistency will kill you in court, as this case shows.
3. Never bad-talk employees who take FMLA leave
The case: A railroad employee was in a 26-week training program to become a train engineer. Because of his medical condition, he had to take unpaid, job-protected leave during the program. The leave was covered under the Family and Medical Leave Act, which prohibits employers for punishing employees from taking such leave. But his supervisor made comments about his absence, asking whether he was “finally done with FMLA,” and saying the leave was a “distraction.”
When the employee missed the final training day, he was booted from the program. He sued, alleging he’d been punished for taking FMLA leave. The court agreed, citing the supervisor’s resentful comments. (Erickson v. Canadian Pacific Railway, DC MN)
The lesson: Never retaliate against employees because they take FMLA leave or are involved in any other “protected” activity.
4. Avoid strict ‘English-only’ language rules for employees
The case: A supervisor at a mall department store told six Somali workers who sorted clothes in a basement office that they’d be fired if they spoke “even one word of Somali” to each other at work.
Luckily for the store, the case didn’t make it to court. After some bad publicity and threats of a lawsuit, the store stepped in, apologized to the workers and disciplined the manager.
The lesson: You can require employees to speak English only for clear business reasons, such as customer service (talking to customers in English) or safety (talking to each other in one language at risky jobs).
Never mandate that English be spoken in break rooms or during off-duty hours. And make sure any language rules don’t carry any hint of discrimination.
5. Porn on computers can count as sexual harassment
The case: A female office employee claimed that her co-workers on three occasions had exposed her to pornographic images on their computer screens. She sued for sexual harassment, saying the company did nothing to protect her. The court sided with her, saying the images “were severe enough to have altered the terms” of her employment. (Criswell v. Intellirisk, 11th Cir.)
The lesson: Don’t take a casual attitude toward employees viewing inappropriate websites on their computers. As this case shows, courts are clamping down on companies that don’t do enough to protect employees from their co-workers’ online pornography.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
Supplemental materials for LEAP 2025 session Structuring Pay with Confidence: Transparency, Equity and Audits
Download Checklist: 11 steps to investigating FMLA abuse during the medical certification process.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Structuring Pay with Confidence: Transparency, Equity and Audits
Download How to Manage Intermittent FMLA Leave.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Structuring Pay with Confidence: Transparency, Equity and Audits
Memo
Re: Employment Law—Basic Training
When one of your employees requests time off because of a health condition or to care for a family member’s health problem, managers need to know whether that leave may qualify under the Family and Medical Leave Act (FMLA).
The law allows qualified employees to take up to 12 weeks of unpaid leave each year for the birth or adoption of a child, to care for their own “serious” health condition or to care for an immediate family member who has a serious condition.
Employees don’t specifically need to say they “need FMLA leave.” It’s the duty of the organization (and the manager) to identify leave requests that may qualify as job-protected FMLA leave. If you suspect a leave request may qualify, notify HR right away.
Here are more specifics on the law:
Which employees are eligible?
To be eligible for unpaid leave, employees must have worked for the organization for at least 12 months and logged at least 1,250 hours of service in those 12 months (slightly more than 24 hours per week).
How much leave is allowed?
The FMLA says eligible employees can take up to 12 weeks of unpaid, job-protected leave during a 12-month period. The law refers to unpaid leave; it doesn’t require paid leave.
Eligible leave doesn’t have to come in one-week or even one-day chunks. The law allows some employees to take “intermittent” FMLA leave, which can be for several hours or less.
What’s an ‘illegal’ manager action?
You cannot prohibit eligible employees from taking FMLA leave. Nor are you allowed to consider a person’s previous FMLA leave as a negative factor in any employment action, such as hiring, firing, promotion or discipline. Never voice complaints about a person’s medical leave.
After FMLA leave is over, employees must be able to return to the same or an equivalent position with equal pay, benefits and perks. The new position must involve the same or substantially similar duties, responsibilities and authority. Employees on FMLA leave continue to earn health benefits.
What reasons qualify for leave?
Qualified employees are allowed to take FMLA leave for any of these reasons:
Military families can use FMLA for various reasons, including before and after an overseas deployment.
What is considered a ‘serious’ health condition?
That’s a tricky one. Basically, the law defines a “serious condition” as one that requires in-patient hospital care or causes a three-day incapacity with continuing treatment by a doctor.
That can include everything from heart attacks to back injuries to injuries resulting from accidents. Pregnancy, morning sickness and prenatal care also qualify. Employers also have the right to demand medical certification from a doctor to decide if a condition qualifies.
Advice: Managers should bring the issue to HR’s attention whenever they suspect an ailment might qualify.
Must employees notify you?
If employees can foresee their need for FMLA leave—say in a pregnancy—they must give you at least 30 days’ advance notice. When FMLA leave is not foreseeable, they need to inform you as soon as it’s practical, which typically means one or two business days.
Remember, employees don’t need to mention FMLA as long as they provide enough information to decide that the leave qualifies. In short, the burden is on employers to recognize that leave may qualify.
The FMLA at a glance
FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for the following reasons:
— Care for the employee's child after birth, adoption or foster care.
— Care for the employee's spouse, child or parent who has a "serious" health condition.
— For the employee's own "serious" health condition that makes the employee unable to perform his or her job.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
