Could Artificial Intelligence Create Real Liability for Employers? Colorado Just Passed the First U.S. Law Addressing Algorithmic Discrimination in Private Sector Use of AI Systems (US)

On May 17, 2024, Colorado became the first U.S. state to pass a law aimed at protecting consumers from harm arising out of the use of artificial intelligence (“AI”) systems. Senate Bill 24-205, or the “CAIA,” is designed to regulate the private-sector use of AI systems and will impose obligations on Colorado employers, including affirmative reporting requirements. The CAIA, which will take effect on February 1, 2026, applies to Colorado businesses that use AI systems to make, or that are used as a substantial factor in making, employment decisions.

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Former employees’ rights of access in Belgian HR matters: when jottings may come back to haunt you

In a decision of 8 April , the Belgian Data Protection Authority has reminded employers of the reach of the GDPR principle of right of access by the data subject.

An employee of a school who had left more than 5 years earlier asked for access to his full personnel file and to “every document mentioning his name”. He also requested to know about the source of any information which had not been collected from him directly, particularly if this information had been shared with other schools. The school refused to give access, claiming that the right to access does not extend to “all documents mentioning the data subject’s name”. The employee insisted, referring to certain “negative experiences” which he believed had been shared with other schools and used to his detriment as part of their selection and recruitment processes, but the school could not be convinced. 

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Is your use of AI in the workplace compliant and guided by policies? (Germany)

The recent decision of the Hamburg Labour Court concerning a German works council’s attempt to enforce a ban on the use of AI in a workplace makes it clear once again that employers cannot simply let the use of AI run its course unchecked.

Employers are well advised to take a moment check their current IT landscape given that implementation of the AI Act is now on the horizon: The EU Parliament voted on the Act on 13 March. Now a final lawyer-linguist check takes place and the text is then expected to be finally adopted before the end of the legislature. The law also needs to be formally endorsed by the Council. The Act will enter into force 20 days after publication in the Official Journal. While its rules will apply in stages (within 6 months – so by December this year – systems bearing unacceptable risks will have to be shut down), after two years all of it will be in force.

The idea behind the Act is to regulate the use and development of artificial intelligence on a risk-based approach. This means that the Act will apply to “providers”, “deployers”, “importers”, “distributors” and “authorised representatives”, essentially entailing not only software developers, but also users (hence employers and employees), and those involved in the distribution chain.  Companies worldwide are going to be affected if they offer or operate AI systems or whose AI-generated output is used within the EU, including in relation to any employees there.

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Dismissal for religious beliefs plays well in theatre drama – but as reason or context? (UK)

Theatre Curtains

What with God, theatre and lesbians, the recent EAT decision in Omooba – v – Michael Garrett Associates and Another might truly be said to be the case that has it all.  Sadly the legal points underneath the facts are rather more prosaic, but this ruling is nonetheless worth noting for their possible practical application in cases with fewer potential tabloid headlines.

A brief look at the background.  Ms Omooba is an actor who in 2019 contracted with her agency MGA and the Curve Theatre in Leicester to perform a leading role as Celie in a stage production of The Color (Sic) Purple.  Celie is described in the ET’s judgement as an “iconic lesbian role”, a small matter which Omooba had somehow overlooked in any review of the script she had carried out before applying and agreeing to play it. 

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Labour and Employment Technology Week – Global Labour and Employment Resource Hub

One Central Place To Access the Latest Labour and Employment Technology and Insights

Last year, we launched our new Global Labour and Employment Resource Hub, and we have continually updated it with new content. Since our launch, we have added new features, such as:

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Labour and Employment Technology Week: Spotlight on Global Edge Lite

Do you need to understand the essential provisions of global employment laws?

Introducing Global Edge Lite (GE Lite), the compact version of our award-winning subscription-based tool, Global Edge.

Covering up to 30 key jurisdictions, GE Lite is entirely free-to-use and allows you to access commercial and pragmatic information on some of the issues we most commonly receive questions about from clients, which can be compared across regions at the click of a button.

Covering topics such as diversity, equity and inclusion (DEI), agency workers, business transfers, electronic signatures, holidays, interns, notices of termination, probationary periods, redundancies, restrictive covenants and working time, GE Lite is an essential resource for anyone managing workforces across multiple jurisdictions.

Simply:

  • Choose from a number of key topics.
  • Select your countries and the questions you want answered.
  • GE Lite will then create an at-a-glance chart for you, with the level of detail of your choice.

Access GE Lite and create free-of-charge at-a-glance charts. Just one of the many ways we at Squire Patton Boggs help our clients to stay ahead.

New York Requires Paid Lactation Breaks and Prenatal Leave (US)

New York’s recently approved 2024 – 2025 budget brings two major changes to the landscape of leave and accommodation laws that New York employers need to know about.

Paid Lactation Breaks

Effective June 19, 2024, all private sector employers (regardless of size) will be required to provide 30 minutes of paid break time to employees who need to express breast milk for a nursing child at work. Employees must also be allowed to use any existing paid break or meal time for breast milk expression in excess of 30 minutes. The law does not explicitly cap the number of paid lactation breaks employees are entitled to per day. Rather, the law provides that employers are required to provide paid lactation breaks “each time such employee has reasonable need to express breast milk,” suggesting that employees may be entitled to multiple paid lactation breaks per day.

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Labour and Employment Technology Week: Spotlight on Global Edge – Helping Businesses Save Time and Reduce Costs

Global Edge, our award-winning product developed exclusively by our global network of leading employment lawyers, gives instant access to the latest employment law developments.

The tool provides clear, reliable, up-to-date answers on key employment law topics around the world, and maps out future legislative change. It is one of a suite of products and services developed by the firm’s Labour & Employment team, designed to provide in-house lawyers and HR professionals at multinational organisations with tailored, bespoke employment law information, without incurring the time and cost of instructing counsel abroad.

Global Edge has been designed to reduce your legal spend, by helping to answer straightforward ad hoc queries – minimising the need to speak to our lawyers about day-to-day issues, ensuring that you use us instead for more complex queries. It has the following benefits and features:

  • Strategic and practical – Designed to help you realise your people goals, plan effectively and identify critical “hotspots” on any project. Read and download high-level “board-friendly” summaries or detailed information on up to 29 employment law topics in 39 countries, jargon free.
  • Intelligent interactive dashboard – Lets you customise your content and alerts.
  • Fast – Multicountry reports, high-level “at a glance” charts or bespoke global newsletters – all available in seconds.
  • Horizon scanner – Notes and colour codes upcoming legislation so you know when to take action.
  • Take it with you – Mobile-, PC-, Mac- and tablet-friendly.
  • Packed with features – Podcasts, webinars, blogs, articles, special focus topics and more.
  • Cost effective – Minimise external legal spend – packed with practical answers to common queries, or use it to inform your conversations with external counsel abroad.

We would be delighted to provide a free-of-charge demonstration or access for a trial period. Contact us using the buttons above or email global.edge@squirepb.com. Further information can be also found on our Global Edge webpage.

Fourth Circuit Holds Firm Against Expansion of Religion-Based Defenses to Discrimination (US)

Lonnie Billard was a well-loved and decorated drama and English teacher at Charlotte Catholic High School (CCHS) in Mecklenburg County, North Carolina. He was named Teacher of the Year in 2012 after serving the Catholic high school’s students for eleven years.

Two years later, CCHS told Mr. Billard he was not welcome back as a teacher.

What happened in the interim that ended this beloved educator’s decorated teaching career? In 2014, shortly after North Carolina recognized same-sex marriage, Mr. Billard posted on his personal Facebook page that he and his partner of fourteen years were engaged to be married.

CCHS has never denied why it fired Mr. Billard: his plans to marry violated the Mecklenburg Diocese’s policy against teachers engaging in conduct contrary to the moral teachings of the Catholic faith. Mr. Billard filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sex discrimination in employment. The EEOC issued a notice of right to sue. Mr. Billard sued in federal court. He won and was awarded stipulated damages.

If that were the end of the story, although a frustrating one for Mr. Billard and his husband, the case would hardly be newsworthy. Why the case warrants attention is the defense that CCHS did not assert, and why.

The ‘Ministerial Exception’

Throughout the second half of the twentieth century, a judicially crafted concept known as the “ministerial exception” emerged among federal appellate courts: Religious institutions may discriminate in their treatment of certain employees, notwithstanding Title VII, provided that the employee plays a vital ministerial employment role or is involved in ecclesiastical matters. Indeed, ministerial exception is a misnomer because the exception is not limited to those employees holding titles of independent religious significance (e.g., priest, pastor, rabbi, imam), but also applies to employees holding important positions within churches and other religious institutions. The Supreme Court recognized the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). Although the Court refused to answer directly the question of who is and is not a minister, it found on the facts of the case before it that a “called teacher” with the title of “Minister of Religion, Commissioned” fit the bill.

Hosanna-Tabor was binding law when Mr. Billard filed suit in 2017. CCHS’s obvious defense to Mr. Billard’s allegations of sex discrimination was that he, as a Catholic school teacher engaged to teach his students in accordance with diocesan mission, fell within the ministerial exception, but in an unusual turn of events, CCHS waived this argument. In fact, CCHS stipulated with Mr. Billard that it would not argue that his job duties qualified him for the ministerial exception. Why? CCHS claims that it waived the ministerial exception defense because it wanted to avoid the burden of discovery around the issue of whether Mr. Billard’s role was sufficiently ministerial. (More on that below.) Since CCHS waived the best defense available to it and unequivocally admitted why it fired Mr. Billard, it’s no wonder he prevailed.

The Appeal

On appeal, CCHS propounded four affirmative defenses it had advanced without success at the trial court level – none of which included the ministerial exception. First, CCHS asserted two First Amendment-based defenses: the “church autonomy” doctrine and freedom of association. The trial and appellate courts quickly disposed of both theories, concluding that CCHS’s “church autonomy” argument was another way of trying to dress up the ministerial exception and, as to freedom of association, the courts found “no precedent for privileging a right of expressive association over anti-discrimination laws.” CCHS also asserted a statutory defense under the Religious Freedom Restoration Act (RFRA), but the courts made quick work of this too, finding that the RFRA does not apply to suits between private parties.

But CCHS’s fourth and final argument, and by far its most controversial, was that the trial court should have exonerated it under Title VII’s religious exemption. This notion, which is different than the First Amendment-inspired ministerial exception and derives from the plain text of Title VII, exempts certain religious organizations from Title VII’s non-discrimination strictures “with respect to the employment of individuals of a particular religion.” 42 U.S.C. § 2000e-1(a). For instance, a Baptist church may favor hiring a Baptist minister or liturgical worship leader over a Methodist or Lutheran candidate, regardless of their respective qualifications. But the religious exemption has only ever been applied as a defense to claims of religious discrimination. Seeking to overturn decades of precedent, CCHS argued in Billard for an unprecedented expansion of the exemption, one that would permit religious organizations to discriminate even on the basis of sex, race, or national origin as long as religious belief motivated the employment decision. At oral argument before the Fourth Circuit Court of Appeals, CCHS conceded that its proffered interpretation of the religious exemption would permit discrimination against not only the relatively small number of employees of religious institutions with a claim to ministerial status, but also the hundreds of thousands of groundskeepers, custodians, bus drivers, musicians, and administrative personnel that work for such institutions but whose duties are non-ecclesiastical.

An interpretation like that for which CCHS called would seriously erode protections against discrimination. For instance, under CCHS’s interpretation of the religious exemption, if a religious employer asserted as a principle of its faith that women should not work outside the home, it should be permitted to discriminate on the basis of sex. Likewise, under CCHS’s reading of the exemption, a religious employer asserting a faith-based reason for preferring one race over another would be exempt from Title VII consequences. And, to close the loop, if a religious employer held as a religious tenet that being gay or marrying one’s gay partner was a moral lapse, then it should be permitted to discriminate on the basis of sexual orientation.

The Fourth Circuit balked at CCHS’s statutorily ungrounded argument for an expansion of the religious employer exemption. The text of Title VII is ambiguous and exempts religious organizations “with respect to the employment of individuals of a particular religion”; it does not protect discrimination against individuals because of religion. The appellate court was also unimpressed by CCHS’s attempt to force a determination on these grounds by earlier waiving the ministerial exception. Therefore, the Fourth Circuit set aside the parties’ waiver and found sua sponte (meaning on the Court’s own initiative), that CCHS was not liable for discrimination for terminating Mr. Billard because he was, notwithstanding his secular teaching subjects, “a messenger of CCHS’s faith.”

The Fourth Circuit explained that it was constrained to reach this outcome based on developing jurisprudence interpreting the ministerial exception. In the years since Mr. Billard filed suit, the Supreme Court expanded on Hosanna Tabor in Our Lady of Guadalupe Sch. v. Morrissey-Berru, finding in 2020 that two secular subject teachers at religious schools were nonetheless ministers within the ministerial exception as they were entrusted with educating and forming students in the school’s faith. (Notably, CCHS was represented by The Becket Fund for Religious Liberty. The Becket Fund was also lead counsel in Our Lady of Guadalupe, a fact which raises a few questions about the plausibility of CCHS’s explanation for waiving the ministerial exception. The Becket Fund claims to be a “leader[ ] in the fight for religious liberty … at home and abroad,” and has fought against COVID-19 mandates, contraception care, and LGBT and unmarried parent foster and adoption rights.)

The appellate court’s decision undoubtedly provides little comfort to Mr. Billard, who is now spending his retirement with his husband whom he married in May 2015. But even though the Fourth Circuit reversed judgment in his favor and instructed the trial court to enter judgment in CCHS’s favor on the grounds that the ministerial exception protected the school, it at least rejected CCHS’s request for unfettered license to discriminate on any basis so long as it articulated a faith-based motive for doing so. As CCHS proved victorious and therefore lacks grounds to appeal to the Supreme Court, for now, religious employers remain insulated from civil interference with decisions about the appointment and removal of persons in positions of theological significance—even high school drama teachers—but may not use purported religious beliefs to justify discrimination on other grounds.

Labour and Employment Technology Week: Spotlight on Global HR Audit – Updated for 2024!

Innovation is at our core. We are attuned to the fast-paced changes taking place around the world and are constantly looking to provide cost-efficient solutions. We continually seek to innovate to support and make effective use of technology to help deliver a consistent and streamlined service when managing complex multijurisdictional mandates.

Over the years, our innovation has been recognised across the legal industry and by our clients.  Most recently, we have been shortlisted for the for the Knowledge Management Innovation award at The Law.com International Legal Innovation & Technology Awards 2024. We have previously won awards such as the Legal Technology Team of the Year award at the Legal Business Awards, for example, and been shortlisted for other awards by publications such as The Lawyer.

Spotlight on Global HR Audit – Your Global Strategic HR Documents and Policies Tool

Global HR Audit is a simple-to-use, innovative tool that helps employers determine the correct HR documentation to have in place in 37 countries around the world, as well as any they should consider having on a global basis. And best of all, it is free.

Global HR Audit provides a list of mandatory, strongly recommended and “nice to have” HR documents and policies at both individual country and global policy levels to assist businesses with their strategic HR agenda.

The tool also features an environmental, social and governance (ESG) radar, to pinpoint those policies and documents that provide the opportunity for going beyond baseline compliance. If you indicate that ESG issues are relevant on a multinational basis, the tool will suggest relevant global policies that you may wish to consider implementing.

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How It Works

Simply:

  • Choose if ESG issues are a consideration
  • Select your country/countries
  • Answer a few short questions relevant to the profile of your workforce in those countries

Global HR Audit will then provide a detailed checklist of the policies, individual agreements, reports, health and safety and immigration obligations and suggested global policies the organisation is required or recommended to have in place.

To allow users to read more in-depth information, Global HR Audit also includes links (for subscribers) to relevant content within Global Edge, our award-winning customisable tool that provides clear, reliable, up-to-date answers on key employment law topics around the world.

To keep up to date with the latest insights, events, resources and technology tools to help you deliver a consistent and streamlined service when managing complex multijurisdictional labour and employment mandates, please check out our Global Labour and Employment Resource Hub or subscribe to our mailing list.

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