Compliance Stuff

On August 8, 2025, in  Bivens v. Zep, Inc ., the United States Court of Appeals for the Sixth Circuit held that employer liability for nonemployee harassment requires proof of the employer’s intent, a departure from the previous negligence standard historically relied upon by other federal appellate courts in accordance with prior EEOC guidance. Background Dorothy Bivens, a Black sales representative for Zep (a cleaning products manufacturer), was terminated during a company-wide reduction in force. Prior to termination, Bivens experienced an incident where a client of Zep, while she was at the client’s workplace, locked her in his office and asked to date her. She reported this to her supervisor, who reassigned the client to another sales team. Later, Bivens was terminated as part of a reduction in force. Following her termination, Bivens sued Zep for hostile work environment, harassment, retaliation, and discrimination in violation of Title VII of the Civil Rights Act of 1964 (Ti...

Are the days numbered for the U.S. Equal Employment Opportunity Commission’s (EEOC) ability to permit plaintiffs to eschew the administrative process by issuing Notice of Right to Sue letters “on request” prior to 180 days? The short answer: they may certainly be. On July 30, 2025, in one of the first decisions concerning deference to EEOC regulations since the Supreme Court of the United States struck down Chevron deference in  Loper Bright Enterprises v. Raimondo , the U.S. District Court for the Eastern District of New York in  Prichard v. Long Island University  invalidated an EEOC regulation allowing it to issue “right to sue” notices on request before 180 days had passed. Noting that the plaintiff employee had explicitly relied on cases that reviewed the EEOC’s regulation under  Chevron , the court remanded the federal portion of the plaintiff’s claims to the EEOC and dismissed her state law claims without prejudice. On a broader level, this decision may signa...

  The U.S. Department of Labor (DOL) indicated in court documents that it intends to begin new rulemaking to replace a previous rule that permitted 401(k) plan fiduciaries to consider environmental, social, and governance (ESG) factors when choosing investment options in the plan. Quick Hits The DOL will no longer apply a previous rule that allowed retirement plan fiduciaries to take ESG factors into account when selecting investment options . Twenty-six states challenged the rule in the Fifth Circuit Court of Appeals. Plan fiduciaries may continue to rely on financial factors to make decisions about which investments to include in the plan. Under the Employee Retirement Income Security Act (ERISA), retirement plan fiduciaries are required to select and monitor plan investments in accordance with ERISA’s fiduciary duties. Among those duties are the requirements to prudently select and monitor plan investments, to diversify plan investments in most cases, and to act solely in the i...