5 issues that could derail employers in 2025
1. DEI pushback:
Diversity, Equity and Inclusion initiatives are suddenly under intense scrutiny after both an unfavorable Supreme Court decision and a change in the federal administration, with state officials and legislators signaling a closer look as well. Employers with elements of these programs still in place should review them carefully to be sure that they don't run afoul of current interpretations of antidiscrimination laws.
2. 'Reverse' discrimination:
A new opinion from the United States Supreme Court has opened the door a bit wider to so-called 'reverse' discrimination suits, where an employee believes they were discriminated against specifically because they are NOT a minority or a member of an otherwise protected class. The opinion interpreted antidiscrimination statutes to mean precisely what they say, and all claims of discrimination must meet the same standards. Employers should expect to see a wave of these claims going forward.
3. Non-compete agreements:
The federal bans on noncompetition agreements championed under the last administration never saw the full light of day, but that doesn't mean these clauses are safe in the future. The current Federal Trade Commission chair, Andrew Ferguson, has signaled that his agency will still scrutinize overbroad non-competes. The heat, while not quite as hot, is still on, and state regulation of non-competes is only increasing.
4. AI issues:
AI is here to stay, but as employers rush to embrace a new, potentially world-changing tool, significant risks remain. Employers may find themselves liable for when AI tools used to make hiring or other employment decisions lead to violations of anti-discrimination laws. States have already begun to regulate these tools precisely for this reason, so employers should be wary of letting AI generate liability.
5. ADA failure to accommodate claims:
These claims are nothing new, but they remain a serious stumbling block for employers. The Department of Justice withdrew several guidance documents earlier this year, which only serves to muddy the waters further. Employers must be mindful of the need to accommodate employees with disabilities, and they must also be open to a broad interpretation of what may considered a disability. When employers fail to engage in the interactive process, courts take notice.
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