LITIGATION TRENDS 2025 | 47 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C in National Association of Diversity Officers in Higher Education et al v. Trump, a federal district court in Maryland issued a preliminary injunction blocking enforcement of most of its key provisions, including those terminating equity-related federal grants and requiring federal contractors and grantees to certify they are not promoting DEI. However, on March 14, 2025, the Fourth Circuit lifted the injunction, allowing most provisions to take effect while litigation continues. EEOC Technical Assistance Document on DEI-Related Discrimination at Work. On March 19, 2025, the EEOC published a document it referred to as a Technical Assistance Document entitled “What You Should Know About DEI-Related Discrimination at Work.” Among other things, the document outlines the EEOC’s current view that workplace DEI activities can be considered unlawful employment practices under Title VII when those actions (i) are motivated, even in part, by an employee’s or applicant’s protected characteristic; (ii) limit, segregate, or classify employees in a way that affects the employees’ status or opportunities (e.g., exclusive identitybased affinity groups); and/or (iii) subject employees to harassment on the basis of a protected characteristic. The document also addresses unlawful retaliation for those who reasonably oppose DEI training. Employers should continue to review their diversity programs and related trainings to ensure compliance with the changing legal landscape. Independent Contractor Classification. On January 9, 2024, the Department of Labor declared a final rule which withdraws the DOL’s prior contractor rule that focused on a “core factors” analysis and directs that FLSA contractor status be assessed under a totality of the circumstances standard. The prior 2021 standard identified five factors to evaluate independent contractor classification under the FLSA. Two factors were emphasized as “core factors,” and carried greater weight: the nature and degree of control over the work and the worker’s opportunity for profit or loss. The DOL’s 2024 rule differs from the 2021 rule in several respects. First, the new rule eliminates the use of the “core factors” analysis, and instead applies a “totality-of-the circumstances” economic reality test, where the factors do not possess predetermined weights. Second, the new rule also permits taking into account reserved rights, whereas the 2021 rule minimized the consideration of such rights. It remains to be seen how the Trump Administration will approach the 2024 rule, but it is notable that in the wake of the administration change, the DOL requested to delay oral arguments in a Fifth Circuit case challenging the 2024 rule. Further developments in this space warrant monitoring. Pay Transparency. Over the past several years, multiple states, including Colorado, New York, California, and Washington, have enacted pay transparency laws. These laws require, among other requirements, job postings to include the expected pay ranges for hired applicants and otherwise helping applicants to gauge a position’s salary prior to receiving an offer. On July 31, 2024, the Massachusetts Governor approved new salary transparency legislation which mandates employers possessing 25 or more employees to publish salary ranges. The legislation also safeguards an employee’s right to seek information regarding salary ranges. The new law will take effect on October 29, 2025. Employment Employers should continue to review their diversity programs and related trainings to ensure compliance with the changing legal landscape and requirements. 46 | Weil, Gotshal & Manges LLP
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