Law Offices of Goldman & Ehrlich

THE EEOC EXPANDS EMPLOYERS’ REQUIREMENTS TO ACCOMMODATE PREGNANCY AND CHILDBIRTH UNDER THE PREGNANT WORKERS FAIRNESS ACT

By John F. Lomax, Jr., Anne E. Dwyer and Brenna Fisher- Snell & Wilmer LLP -
On April 19, 2024, the Equal Opportunity Employment Commission (EEOC) issued a final rule (the Rule) to implement the Pregnant Workers Fairness Act (PWFA). Although the PWFA went into effect last year in June 2023, the EEOC’s final rule became effective on June 18, 2024. The PWFA requires employers to make reasonable accommodations for an employee who requests accommodations based on a physical or mental condition arising from pregnancy, childbirth, or other related medical conditions. Importantly, the PWFA only affects requests for accommodations and does not govern discriminatory behavior or other adverse employment actions, such as termination.

The PWFA applies to private and public employers with fifteen or more employees. Its reach is extensive and expands employers’ existing obligations to accommodate pregnancy-related conditions beyond what is already required under the Americans with Disabilities Act (ADA).

Under the PWFA, employers must make reasonable accommodations for the known limitations of an employee or job applicant. A reasonable accommodation is a change in the work environment or the way things are typically done at work. This can include:

Longer, more flexible breaks to eat, drink water, or use the restroom;
Giving the employee the option to work remotely;
Changing a uniform or dress code;
Providing a reserved parking space; or
Allowing light duty to avoid strenuous manual labor.
To qualify under the PWFA, an employee must be qualified to perform the essential functions, i.e., fundamental duties, of the job with or without a reasonable accommodation. An employee may still qualify under the PWFA even if they are unable to perform essential functions of their job as long as (1) the inability is temporary, (2) the employee could perform the essential functions “in the near future,” and (3) the inability to perform the essential functions can be reasonably accommodated. The EEOC’s rule presumes that “near future” may include the entire length of a pregnancy. Simply put, the EEOC’s regulations arguably require employers to temporarily suspend one or more of the job’s essential functions to accommodate a pregnancy or childbirth-related limitation.

When an employer considers whether to temporarily suspend the employee’s essential functions of the job, the employer should consider the length of time that the employee will be unable to perform the functions, whether the employee can accomplish other work during that time period, whether other employees or third-parties may be able to temporarily perform those essential functions, and whether the essential functions can be postponed or remain unperformed for any length of time.

The EEOC’s final rule expansively defines “related medical conditions” of pregnancy and childbirth. Such medical conditions can include menstruation, nausea, breastfeeding, carpal tunnel syndrome, ectopic pregnancy, stillbirth, abortion, and endometriosis. The EEOC’s list is not all inclusive and makes clear that the PWFA covers a broad range of conditions, including those that are “episodic” or “minor.” A limitation can include (1) additional time for attending to related medical conditions such as attending increased healthcare appointments or needing time to breastfeed or (2) a physical condition such as morning sickness or migraines. The EEOC acknowledges in the Rule that an employee’s need for accommodations may change as the employee goes through pregnancy and childbirth.

Importantly, the limitation must be known to the employer. Employers are not required to make reasonable accommodations for limitations or conditions relating to pregnancy and childbirth if the employer is unaware of the conditions or limitations.

Despite the requirement that the limitation be “known,” the PWFA loosens requirements for medical documentation, as compared to its ADA counterpart. Under the PWFA, employers may request supporting medical documentation only when it is “reasonable under the circumstances.” For example, supporting medical documentation will not be necessary if an employee is visibly pregnant or the pregnancy or childbirth is otherwise “obvious.” Even if supporting documentation is reasonable under the circumstances, the employer may request only the minimum necessary documentation to understand the employee’s limitation, confirm the condition is related to pregnancy or childbirth, and describe the adjustment needed at work. The documentation may come from any healthcare provider; it is not required that the employee bring documentation from the employee’s treating physician.

Once an employer knows of an employee’s limitation, the employer should engage in the “interactive process.” The interactive process is simply the process by which the employer and employee should communicate about the limitation and the accommodations that would allow the employee to continue in their position. The interactive process should culminate in approval or denial of the employee’s requested accommodation.

Employers may deny a reasonable accommodation if it would cause undue hardship. Employers must not, however, deny an applicant a job position based on the applicant’s need for a reasonable accommodation. Additionally, employers may not require an employee to take leave based on pregnancy or childbirth when a reasonable accommodation would allow the employee to continue working and may not unreasonably delay providing a requested accommodation.

For purposes of the PWFA, undue hardship means that the requested accommodation would cause the employer significant difficulty or expense. Deciding whether an accommodation will cause undue hardship requires a case-by-case assessment. In making that assessment, employers may consider:

The nature and net cost of the accommodation;
The financial resources of the facility, the number of employees at the facility, and the accommodation’s effect on the expenses and resources;
The employer’s operations and functions;
The impact of the accommodation on the operation of the employer’s facility; and
The impact of the accommodation on other employees’ abilities to perform their duties.
The EEOC also set forth a list of accommodations that will not be considered an undue hardship on an employer in “virtually in all cases.” Those accommodations include:

Allowing an employee to carry or keep water nearby and drink as needed;
Allowing an employee to take additional restroom breaks as needed;
Allowing an employee to sit or stand as needed throughout the workday; and
Allowing an employee to take breaks to eat and drink as needed.
Finally, an employer must not punish or retaliate against an employee for requesting or using a reasonable accommodation, attempting to exercise their rights under the PWFA, or reporting unlawful action under the PWFA.

Though the EEOC only recently announced the final rule, it has already been the subject of litigation. Seventeen states joined in a lawsuit challenging the Rule in the Eastern District of Arkansas, asserting that the text of the regulation impermissibly includes abortion as a related medical condition. While the states did not challenge the PWFA itself, they challenged the Rule’s text requiring accommodations for limitations related to abortions. The states requested a nationwide injunction of the Rule in its entirety. The court declined to issue the requested injunction, stating that the case “presents a narrow disagreement over a few words, a disagreement that seems unlikely to flower into few, if any, real world disputes,” and dismissed the case.

Several other challenges to the Rule are still pending nationwide. The US Conference of Catholic Bishops and the states of Louisiana and Mississippi have filed lawsuits in the Western District of Louisiana, challenging the abortion language in the Rule. A court in the Northern District of Texas blocked the EEOC from enforcing the PWFA against the state of Texas and its agencies, ruling that the Act’s passage by proxy vote violated the Constitution’s quorum clause. This ruling was appealed by the EEOC, and the appeal is currently pending before the Fifth Circuit Court of Appeals.

Employers are encouraged to become familiar with the PWFA and its regulations and may want to consider training supervisors and managers on the law. For example, supervisors should know that employees do not need to reference the PWFA or use the terms “reasonable accommodation” or “interactive process” to invoke their rights.

A ROSE BY ANY OTHER NAME STILL STINKS—MIS-GENDERING ISN’T HARMLESS

By Amy Epstein Gluck- Pierson Ferdinand LLP -
I fail to understand why the preferred identity of an individual offends another or is cause for ridicule and harassment.

I mean, why?

In the workplace, such conduct may well lead to investigations and lawsuits.

In fact, the Equal Employment Opportunity Commission (EEOC) just announced that it settled a claim made by an employee (a supervisor) who alleged that after disclosing their gender identity and pronouns to their employer, other managers and staff continued to intentionally refer to them using their old pronouns - you know, the ones that did not align with their gender identity.

If true, this is s*xual harassment. Title VII of the Civil Rights Act of 1964 proscribes s*xual harassment by coworkers and third parties in the workplace.

The EEOC claims its investigation found evidence confirming that the alleged s*x-based harassment continued for more than six months, while the employer, a nursing facility in Washington State, failed to take appropriate actions despite multiple complaints about the alleged harassment.

And now, the employer will pay the price.

Remember, the EEOC’s recently issued final guidance informed and warned employers that intentional, incessant misgendering constitutes s*x-based harassment.

Does this mean an employer is liable every time another employee or supervisor forgets to use the correct pronoun?

No. It’s the repeated intentional misuse that matters.

“Accidental slip-ups may happen, but repeatedly and intentionally misgendering someone is a clear form of s*x-based harassment,”

said Elizabeth M. Cannon, director of the EEOC Seattle Field Office, about this settlement.

Indeed, courts agree.

In Copeland v. Ga. Dep’t of Corr., 97 F.4th 766 (11th Cir. 2024), the Eleventh Circuit Court of Appeals vacated a summary judgment decision in favor of the employer, noting that while an occasional mistake using the incorrect name or pronouns will not create liability, misgendering an employee can be sufficiently severe or pervasive so as to support a claim of hostile work environment under Title VII.

Even before the EEOC’s 2024 guidance, and before the U.S. Supreme Court’s landmark case Bostock v. Clayton County, which I wrote about here, unlawful harassment included conduct based on s*xual orientation and gender identity.

For example, the EEOC explained here that in its decision in Lusardi v. Dep’t of the Army, (EEOC Appeal No. 0120133395 (Apr. 1, 2015)), although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

What Should the Employer Have Done?

Under Title VII, an employer must exercise reasonable care to prevent and correct promptly any harassment.

An employer is liable, however, for a hostile work environment if it failed to act reasonably to correct harassment about which it knew or should have known.

What kind of corrective action should this employer have taken?

It must conduct a prompt and adequate investigation and then act appropriately based on the findings of that investigation.

Now, a “prompt” investigation does not mean same day, but it does not mean 6 weeks from the date of the complaint either.

Employer Takeaways

Employers who want to comply with Title VII’s mandates and the EEOC’s guidance can do the following:

Include clear, detailed anti-harassment and anti-retaliation policies in your employee handbook along with plenty of examples, including those based on gender identity and s*xual orientation such as intentional misgendering; “outing” a person (i.e., disclosing a person’s s*xual orientation or gender identity without permission); or harassing conduct because someone does not present in a manner that would stereotypically be associated with that person’s s*x;
This may seem like a no-brainer, but ensure HR disseminates these anti-discrimination and -harassment policies throughout the company, updates them as needed, and that employees such policies.
Convey that employees will not be retaliated against for reporting discrimination or harassment.
In that same handbook, encourage and provide a written procedure for reporting, and explain that management will promptly investigate claims of unlawful harassment.
Then, as emphasized here, follow this policy, documenting the process along the way. Have clear standards for accountability and actions that merit discipline.
Provide regular, interactive training to your employees, yes, but include also your supervisors and HR staff as well so that they can recognize, respond to, and prevent unlawful harassment (based on s*x, race, etc.). Give examples, fact-based scenarios, pop quizzes, whatever.
Leadership matters. Senior leaders should promote harassment prevention to show commitment and lead by example.
As the Washington State EEOC director stated in the settlement announcement:

Employers have a duty to intervene when employees—including transgender, non-binary, and other gender non-conforming individuals—are treated maliciously in the workplace because of their gender identity. Training can be a powerful tool for informing employees of their rights and proactively preventing harassment.

No argument there. We’ve been talking about the effectiveness of bystander intervention training for years.

Employers, we must do better to educate the workforce and correct s*x-based harassment.

EEOC UPDATES WORKPLACE HARASSMENT GUIDELINES REINFORCING PROTECTIONS FOR LGBTQ+ EMPLOYEES (US)

By Ariel Cohen- Squire Patton Boggs -
For the first time in 25 years, on April 29, 2024, the U.S. Equal Employment Opportunity Commission (“EEOC”) published final guidance on harassment in the workplace, updating the federal workplace guidelines to provide protections for transgender workers related to misgendering and the denial of bathroom access. This new guidance reflects the 2020 U.S Supreme Court’s decision in Bostock v. Clayton County (as we discussed previously here), a landmark decision which held that Title VII’s prohibition on s*x discrimination extends to bias based on s*xual orientation and gender identity.

The updated EEOC guidelines incorporate the Bostock decision through its inclusion of the definitions of harassment based on s*xual orientation and gender identity, including how that identity is expressed. Accordingly, the new guidelines define s*x-based harassment to include the following conduct:

insulting remarks regarding s*xual orientation or gender identity;
physical assault due to s*xual orientation or gender identity;
forced “outing” of an individual (the disclosure of an individual’s s*xual orientation or gender identity without permission);
harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s s*x;
misgendering (repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity); and
denying access to s*x-segregated facilities consistent with the individual’s gender identity, such as bathrooms and locker rooms.
The guidance also provides multiple examples of unlawful harassment based on s*xual orientation and gender identity.

The new EEOC guidance, which goes into effect immediately, is the EEOC’s second attempt in recent years to establish updated anti-harassment guidelines for employers. Although the guidance does not have the force of law and therefore is not legally binding, it serves as a standard for how the EEOC will interpret and enforce laws relating to discrimination in the workplace. The updated EEOC guidance thus should serve as a guidepost for employers, and in light of the new guidance, employers should consider reviewing their policies, practices, trainings and employee handbooks to ensure compliance.

BIDEN’S FINAL RULE ON TITLE IX
(Gender discrimination and s*xual harassment in Public Education)
By Jeffrey M. Weimer and Cori M. Smith - Reed Smith LLP -

The Biden-era Title IX rule is finally here. While there is plenty to digest, this alert is meant to address the immediately pressing questions.

What now?

While the rule does not go into effect until August 1, 2024, there are many actions institutions will need to take starting today. This rule will require an overhaul of Title IX policies, including a new definition of s*xual harassment and new procedures for investigating Title IX violations, which will require review and sign off at many levels.

Immediately, there will also be questions from students and campus communities that require sensitivity and a thoughtful response. Many stakeholders have been pushing for the new Title IX rules to take effect much sooner than August. There are others that will be pushing to keep the Trump-era policies in place. Campus leaders will need to communicate intentionally with their communities about what can be done before August 1, 2024, and what will be done thereafter.

It’s especially important to communicate that these policies are not retroactive on most campuses—or for Department of Education enforcement—meaning that the rule or policy in place when the alleged Title IX violation occurred (not when the report was made) is most often the rule or policy that any investigation will proceed under. As the new rule makes clear, “the Department will not—and does not have the authority to—enforce these final regulations retroactively; they apply only to s*x discrimination that allegedly occurred on or after August 1, 2024.” Most institutions also enforce policies on a prospective basis, particularly regarding the definitions of prohibited conduct (i.e., investigating misconduct as it was defined at the time of the alleged incident). This is an important consideration for messaging to campus communities and for training your employees that are tasked with enforcing these policies.

What are the biggest changes?

As expected and proposed, the rule’s updated definitions of s*xual harassment and updated investigation procedures are reminiscent of the Obama-era. Significantly, the rule expands the definition of s*xual harassment from behavior that is “severe, pervasive, and objectively offensive” to “unwelcome s*x-based conduct.” The rule also allows a return to a single-investigator model, where a single individual can serve as both the decision-maker and investigator. In that same vein, the rule explicitly allows an institution to tailor its Title IX processes to its size, the age of its students, and the resources available to it. The rule also allows a return to the “more likely than not” or preponderance of evidence standard, used in the Obama-era and in most civil lawsuits, instead of the “clear and convincing” standard of evidence used in the Trump-era rule.

New to the Biden-era, the rule adds significant protections for LGBTQI+ students and employees. The rule also requires protections for students and employees with need for accommodations related to pregnancy, breastfeeding, or the termination of pregnancy. While many of these protections are already in place in compliance with state law, institutions, with the advice of counsel, should carefully parse these rules in comparison with existing state law compliance efforts to ensure compliance.

What stayed the same?

As is often the case, the discussion surrounding the new rule focuses heavily on the changes. The consistencies through the Obama, Trump, and Biden eras, however, are incredibly important to note—not only as a lifeline for Title IX administrators that have experienced whiplash over the past decade from shifting political tides on the state and federal level, but for all of us who care about making our communities safe and welcoming places for students and employees of all backgrounds.

One such consistency is that every rule has included a requirement that schools assume an accused student is innocent at the outset of a Title IX investigation. This requirement has important implications for the kinds of remedial measures that can be taken when, due to the request of the complainant or other circumstances, no investigation is pursued. No remedial measures or actions taken by the institution to support a student who may have experienced s*xual misconduct can take the form of sanctions on the accused without an investigation and a finding of a policy violation.

The rules also all include the option for an informal resolution process to varying degrees. Importantly, however, the new rule prohibits these informal processes in cases of allegations by students against employees.

Why did this take so long?

While “bureaucratic red tape” is the answer most often given in response to this question, there are important protections that come with the process this Biden-era rule went through. The process, Notice of Proposed Rule Making (“NPRM”), is a formal process of administrative law that allows an executive branch agency to promulgate rules with more staying power than other types of guidance. Importantly, the Obama-era Dear Colleague Letters were not published through the NPRM, meaning that when Trump took office the Trump administration could repeal the Obama-era guidance with very minimal process. The Trump-era rules followed NPRM, meaning they required another NPRM from the Biden administration to overturn them. This also means that, come August 1, 2024, we will be governed by the Biden-era Title IX rule and likely will continue to be no matter what happens in the November 2024 election, unless and until a new administration goes through the NPRM.

LAW STUDENT SUES CHICAGO BEARS OVER “LEGAL DIVERSITY FELLOW” ROLE

By Christopher R. Deubert- Constangy Brooks Smith & Prophete LLP -
There’s a flag on the play.

Professional sports is merit-based. Their highly competitive nature requires teams to retain only the most highly skilled players. Failure to do so will be apparent in the team’s win-loss record. A new lawsuit from Jonathan Bresser, a student at DePaul University College of Law in Chicago, against the Chicago Bears challenges whether teams are following the same merit-based principles off the field as on.

Diversity and the NFL workplace

The majority of pro football players have been Black, but the same has not been true among coaches, executives, and other team personnel. Since 2003, the National Football League has enforced various forms of the “Rooney Rule,” which seeks to increase diversity in the coaching ranks by requiring teams to interview minority candidates. The Rule has had mixed success and was the subject of a recent complaint to the U.S. Equal Employment Opportunity Commission from America First Legal, an organization directed by former staffers from the Trump Administration. At the same time, Brian Flores, a Black coach, has an ongoing lawsuit against the NFL and various clubs alleging that their hiring practices are discriminatory.

Obtaining any job in sports is difficult due to the high demand for such positions. A variety of structural and socioeconomic factors would support the position that white candidates generally have an advantage over minority candidates. Most notably, entry-level positions in sports are commonly unpaid. Many can afford this investment in exchange for a lucrative career in professional sports, but many minority candidates cannot.

Finally, the racial make-up of lawyers is relevant. According to the American Bar Association, 14.1 percent of lawyers are non-white and 37 percent are women, both numbers being well below their proportions in the general population.

The Bears’ fellowship

Presumably with these challenges in mind, in the fall of 2023, the Bears posted a job posting for a “Legal Diversity Fellow.” The Fellow was to be a student from a local law school who would have the chance to work with the team over the summer performing a variety of legal tasks standard to such internships. In addition, the Fellow would “have the opportunity to work with the Club’s Diversity Equity & Inclusion (DEI) department on a variety of the Club’s DEI goals, initiatives and priorities.”

So far so good. But under “Qualifications,” the Bears said the Fellow must be a “[p]erson of color and/or female law student.”

Jonathan Bresser applies

In November 2023, Jonathan Bresser – who is white – applied for the fellowship. His cover letter said that his more than two years as a litigation paralegal at Trent Law Firm, P.C., made him well qualified for the role. He also emphasized his experience with and commitment to diversity.

On January 5, Mr. Bresser received an email from the Bears advising him that his application had been rejected. The stated reason for the rejection was that the Bears had “chosen to pursued other applicants whose experience and qualifications more closely match our needs.”

This week, represented by the law firm at which he works, Mr. Bresser filed suit in an Illinois federal court, alleging that the Bears and several of its employees violated Title VII of the Civil Rights Act and its Illinois equivalent by not hiring him because he is a white male.

On its face, Mr. Bresser’s claim is compelling. Title VII prohibits employment discrimination on the basis of race, color, religion, national origin, or s*x. The U.S. Supreme Court has recognized very limited exceptions to these strict prohibitions, permitting employers to adopt “voluntary affirmative action plans” where (1) preferences are intended to “eliminate manifest racial imbalance in traditionally segregated job categories”; (2) the rights of non-minority employees are “not unnecessarily trammeled”; and (3) the preferences are temporary in duration. Otherwise, absent very unique circumstances, protected characteristics cannot be the basis for making employment decisions.

The Bears’ fellowship would not qualify as a voluntary affirmative action plan. These plans have historically been directed toward large, often blue-collar, workforces.

To prevail in his lawsuit, Mr. Bresser will have to prove that his race and s*x were more likely than not to be motivating factors in the Bears’ decision to reject his application. Claims of race or s*x discrimination are best defeated by showing that the employer had legitimate, non-discriminatory reasons for the action it took.

Because the lawsuit was just filed this week, the Bears have not yet had a chance to respond. They may argue that Mr. Bresser’s race and s*x were not considered when the club made the decision not to hire him for the fellowship.

The Bears may also argue that Mr. Bresser, while minimally qualified, was not the best candidate. Judging from the resume that he attached to his complaint, Mr. Bresser’s work as a paralegal is his only legal experience. He has no experience in the sports industry. Because the sports industry is so competitive, there are almost always many highly qualified candidates for positions. Moreover, Chicago is home to several excellent law schools, and presumably there were very impressive candidates from some of these schools.

On the other hand, Mr. Bresser attached to his complaint a printout from LinkedIn showing that someone from the Bears viewed his profile – which contains his picture – shortly before his application was denied. And, of course, the Bears’ express statement that only minority or female candidates were eligible to be Fellows will certainly count in Mr. Bresser’s favor.

***

The Bears’ fellowship program appears to be one among many that got out ahead of the law and is now facing a backlash. Given that Mr. Bresser’s non-speculative damages would be minimal, the club is likely to try to settle the case quickly to avoid potential liability for statutorily-required attorneys’ fees.

At the same time, the club should scrap race and s*x as qualifications for any position. Instead, the club should consider requiring submission of “adversity statements,” in which applicants may discuss how race affected the applicant’s life, an approach okayed by the Supreme Court for college admissions. (However, what is acceptable for college admissions is not necessarily acceptable for employment because colleges and employers are governed by different anti-discrimination laws.) Another alternative would be to offer the program to candidates of any race or s*x who are disadvantaged in some way or have overcome significant hardship. That would refocus the club’s hiring on merit while still taking into account the challenges of historically underprivileged candidates.

PREFERRED PRONOUNS AND THE AGING WORKFORCE

By Robin Shea- Constangy Brooks Smith & Prophete LLP -

What takes priority?

There was a social media storm this week after a large non-profit organization terminated a volunteer after the volunteer questioned the point of having preferred pronouns in signature blocks.

The woman was 90 years old and had been a dedicated and award-winning volunteer for the organization for 60 years. Her deceased husband had the medical condition that was the raison d'etre of the organization and had also been a dedicated volunteer during his life.

As you can guess, in the social media storm that ensued, very little sympathy was expressed for the organization that let her go. In fact, it looks like the organization could become the next "Bud Light."

(Bud Light has been the target of boycotts after it featured Dylan Mulvaney -- a transgender model, actress, and social media influencer -- in one of its promotions.)

Anyway, back to our non-profit: According to the 90-year-old volunteer and her daughter, the volunteer had seen preferred pronouns on signature blocks and asked what that was all about. She was informed that the purpose of the pronouns was to be inclusive. The volunteer said that including "she/her" on emails did not seem particularly inclusive, since that excluded males. According to the volunteer and her daughter, that was the entire discussion. A few days afterward, she said she received a letter terminating her relationship with the nonprofit for failure to comply with its guidelines on diversity/equity/inclusion.

I keep saying "according to the volunteer and her daughter" because the organization has not provided its side of the story. It's possible that they would say the volunteer expressed more, and more offensively, than this. We don't know.

So for now, I'll assume the volunteer and her daughter have accurately recounted the story. If this is all she did, then I think the organization overreacted and should apologize and bring her back. If she'll take them.

What does the EEOC say about pronouns?

Not even the Equal Employment Opportunity Commission is saying employers must require employees to include their pronouns in their signature blocks, website bios, etc. The EEOC's position is that if a person has preferred pronouns, the employer and employees have to respect that and use that person's preferred pronouns. The EEOC also acknowledges that employees can make mistakes with pronouns, and that making a mistake is not normally considered discrimination or harassment. It's only when a person repeatedly (thus, presumably, deliberately) uses the non-preferred pronouns that there could be legal implications.

The same principles apply to the use of "dead names" -- meaning the name that a transgender or nonbinary employee used in the past.

Should age be a mitigating factor?

Should employers acknowledge that the concept of preferred pronouns might be a little more of a challenge for a 90-year-old than it might be for a 40-year-old? Or even a 60-year-old? I think so, but I can't say my feelings are completely unmixed. What should an employer do if a white 90-year-old addresses Black co-workers they way some people would have done in 1950? Do I even have to ask?

The thought has also occurred to me that the 90-year-old volunteer may have shown signs of decline and that the organization (or, at least, the person who terminated the relationship) thought failure to comply with DEI guidelines might have been a convenient, non-age-related reason to call it quits. If so, then in hindsight the organization should have simply stated that the volunteer was no longer effective in her role.

Of course, because the woman was a volunteer and not an employee, none of the employment laws apply here. But this is a situation that employers may have to face in the not-too-distant future.