Quick Hits

• Virginia Governor Spanberger vetoed SB 378/HB 1263 on May 14, 2026, blocking legislation that would have extended collective bargaining rights to approximately 500,000 public employees across the Commonwealth.
• The vetoed bill would have repealed Virginia’s collective bargaining ban, established a Public Employee Relations Board, required mandatory good-faith bargaining over wages, hours, and working conditions, and imposed binding arbitration upon impasse.
• Virginia’s existing framework, which allows individual localities to opt in to collective bargaining for certain municipal employees, remains in effect while the governor has stated she will continue working with the General Assembly on a revised approach.

The bill passed both chambers of the Virginia General Assembly, after which the governor proposed amendments. After the General Assembly rejected the governor’s proposed amendments, the governor bucked speculation that she would sign the bill and ultimately vetoed the measure, stating she supported public-sector collective bargaining, but believed additional amendments were needed.

Overview of SB 378/HB 1263

The now-rejected bill would have repealed Virginia’s collective bargaining ban and significantly expanded the Commonwealth’s approach to public sector labor relations. Currently, Virginia law permits individual localities to opt in to collective bargaining for certain municipal employees. The bill would have overturned this framework and imposed mandatory collective bargaining for public employers. Key provisions included:

• the establishment of a five-member Public Employee Relations Board (PERB) with authority to certify bargaining units, conduct representation elections, and adjudicate unfair labor practice claims;
• mandatory good-faith bargaining, requiring public employees and certified representatives to negotiate over wages, hours, and working conditions, with binding arbitration if the parties reach an impasse;
• the creation of the Virginia Home Care Council, a new entity to serve as the public employer for individual care providers, solely for the purposes of collective bargaining, while preserving participants’ authority to hire, fire, and direct their providers;
• coverage and rights extended to state employees, local government employees, K–12 educators, and higher education service employees, with exclusions for elected officials, confidential employees, temporary workers, and the judicial branch; and
• mandatory binding interest arbitration upon impasse.

The Governor’s Proposed Amendments

Governor Spanberger proposed amendments on April 13, 2026, that, among other things, would have:

• delayed implementation for local governments from July 1, 2028, until January 1, 2030 (when the governor’s four-year term will expire);
• provided additional flexibility for public employers to account for existing budget timelines;
• narrowed the scope of bargaining from requiring bargaining over terms and conditions of employment to permitting bargaining over those terms and conditions; and
• transformed mandatory, binding interest arbitration upon impasse into a non-binding process.

Current Status and Outlook

Governor Spanberger has stated she remains committed to working with the General Assembly and stakeholders to develop a workable public-sector collective bargaining system. However, that is yet to be seen. As of now, Virginia’s current framework, which vests localities with the discretion to opt in to collective bargaining for certain employees, remains in place.

Ogletree Deakins’ Richmond office will continue to monitor developments and will publish updates on the Traditional Labor Relations and Virginia blogs as additional information becomes available.

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Quick Hits

• On June 22, 2026, the Maryland Commission on Civil Rights (MCCR) published its Elements of Proof Guidance, a comprehensive document setting forth the elements of proof the MCCR applies for claims of employment and other discrimination under Maryland State Government Article, Title 20.
• The guidance identifies thirty-five categories of employment discrimination claims—ranging from hiring, promotion, and discharge to harassment, retaliation, and genetic testing—and sets forth the specific elements required to prove each claim under Maryland law.
• While Maryland courts typically look to federal law, the guidance reveals several areas where Maryland law diverges—including additional protected classes, a lower harassment threshold, strict supervisor liability, and different accommodation standards—though it is an agency investigation tool only, and Maryland courts may disagree with the MCCR’s interpretations.

For Maryland employers, the guidance provides a valuable window into how the MCCR evaluates employment-related discrimination claims. The guidance identifies the following thirty-five employment discrimination claims and sets forth the elements required to prove each claim under Maryland law:

• Hiring
• Reasonable accommodation
• Religious accommodation
• Wages
• Benefits
• Terms
• Conditions
• Privileges
• Promotion
• Discipline
• Demotion
• Discharge
• Constructive discharge
• Reinstatement
• Qualifications
• Testing (adverse impact)
• Testing (disparate treatment)
• Training
• Apprenticeship
• Job Classification
• Layoff
• Recall
• Seniority
• Tenure
• Retirement
• Harassment (hostile environment)
• Harassment (quid pro quo)
• Sexual harassment (hostile environment)
• Sexual harassment (quid pro quo)
• Retaliation
• Unfavorable Reference
• Advertising
• Reasonable accommodation discrimination in pregnancy or childbirth
• Genetic testing
• Genetic testing (complainant refusal)

Notably, although the Maryland courts typically look to federal law for guidance in evaluating employment discrimination claims under Maryland law, the guidance also reveals several areas where the MCCR’s analytical framework differs from the federal approach. Below are some of the more significant differences between state and federal law:

1. Protected classes. Maryland law protects additional personal characteristics, including marital status, sexual orientation, gender identity, and military status, which are not protected under federal law.
2. Harassment definition. Until 2022, Maryland law was consistent with federal law in requiring conduct to be “severe or pervasive,” among other things, in order to constitute unlawful harassment. This guidance specifically removes that requirement in the following three situations involving “unwelcome and offensive conduct”: (1) submission to the conduct is made a term or condition of an individual’s employment, whether explicitly or implicitly; (2) submission to or rejection of the conduct is used as the basis for employment decisions about the individual; or (3) based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile. Maryland law also provides a separate definition of “sexual harassment” as conduct “that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature.” Again, such conduct need not be severe or pervasive under the same three situations set forth above.
3. Supervisor harassment liability. Maryland law imposes strict liability for supervisor harassment, which the guidance frames as being foreseeable or taking place within the scope of employment, considering factors such as when and where the acts took place (e.g., workplace, offsite trainings, mandatory retreats, or office parties). This differs from the federal standard, which turns on whether a tangible employment action occurred and the availability of an affirmative defense.
4. Religious accommodation. The MCCR guidance uses a “more than a de minimis cost” undue-hardship standard for religious accommodation, while federal courts now apply the more demanding standard articulated by the Supreme Court of the United States in Groff v. DeJoy.
5. Pregnancy accommodation. Maryland law obligates employers to provide accommodations for “disabilities caused or contributed to by pregnancy or childbirth,” while the federal Pregnant Workers Fairness Act requires accommodations for “known limitations” related to pregnancy, childbirth, or related medical conditions.
6. Retaliation as adverse action. The MCCR guidance lists “adverse employment action” as an element of retaliation, while retaliation under Title VII of the Civil Rights Act of 1964 uses a “materially adverse” standard, which is broader and thus typically easier for individuals to meet.

This guidance is an agency investigation tool only. Accordingly, while the MCCR uses it to evaluate claims, Maryland courts may not necessarily agree with the MCCR’s interpretation of the law. However, the guidance may be helpful for Maryland employers to consider when defending against claims before the MCCR. In responding to MCCR complaints, employers may benefit from addressing each element that the MCCR evaluates in their responses, to clearly rebut such claims within the framework that the MCCR applies.

Ogletree Deakins’ Baltimore office will continue to monitor developments and will provide updates on the Employment Law and Maryland blogs as additional information becomes available.

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Quick Hits

• MSHA enforcement data from July 2024 through April 2026 shows citations under the surface mobile equipment rule have generally declined as metal and nonmetal mine operators have moved toward compliance with written safety program requirements.
• Enforcement has been uneven across districts, with Dallas and Warrendale accounting for most citations under Section 56.23002(a), while many other districts issued few or none.
• Most citations have been treated as non-S&S paperwork violations, but future enforcement may focus more heavily on annual updates, miner input, program availability, and more severe citations after accidents or changing mine conditions.

Enforcement Snapshot

The data shows MSHA issued 863 citations under this regulation between July 2024 and April 2026. Of those citations, 432 were issued in 2024, 369 in 2025, and sixty-two in 2026 through April. This suggests operators have been coming into compliance over time, with the number of citations written for mines not having a program declining.

Enforcement of Section 56.23002(a) appears to be extremely uneven, with two districts in particular issuing a disproportionate number of citations. Indeed, those two districts (Dallas and Warrendale) issued 66 percent of the citations under Section 56.23002(a), 256 and 317, respectively.

In addition, five districts issued either one or zero citations under the provision. Another eight issued twenty or fewer citations under Section 56.23002(a).

About eleven of the 863 citations issued under Section 56.23002(a) resulted in 104(b) failure to abate orders, suggesting that around 1 percent of the mines cited may not have had a program of any kind—yet were unable to formulate one within the time for abatement.

Only thirteen of the 863 citations under Section 56.23002(a) were marked as significant and substantial (S&S). Further, only fifty-seven were issued as high negligence. The data suggests almost all citations issued under this provision so far have been treated like a typical paperwork violation.

Section 56.23002(b) requires that metal/nonmetal operators designate at least one person responsible for evaluating and updating the mobile equipment safety program. From July 2024 through April 2026, only thirty-two citations were issued under this provision. All of them were designated as non-S&S, and none were designated as high negligence.

The particular requirements within the surface mobile equipment safety program for metal/nonmetal operators are set forth in Section 56.23003(a). MSHA issued seventy citations under this provision from July 2024 through April 2026—eight of which were designated as S&S. Nine had high-negligence designations, with seven of those occurring in 2025. This suggests at least some operators may have been tardy in creating a compliant program.

In addition to the seventy citations under Section 56.23003(a), other citations were issued under subparts of that section. Eighteen were issued under subpart (a)(1), which sets forth the required components of a program. Ten of those were issued in 2024, with only two issued so far this year. All eighteen citations were non-S&S, and three were evaluated as high negligence.

An additional ten citations were issued under the components of 56.23003(a)(2) and (4), relating to other components of a program, half of which were marked as S&S. These appear to identify gaps or problems with components of safety programs.

MSHA issued ninety-two citations between July 2024 through April 2026 pursuant to Section 56.23003(b). That regulation requires the individual deemed to be a “responsible person” to update the written safety program annually—or as mining conditions change, accidents or injuries occur, or as changes to mobile equipmentare made. Fifty-three of those citations were issued by two district offices: Dallas and Vacaville.

Sixty-two of the ninety-two citations under Section 56.23003(b) were issued in 2026, with only thirty issued in 2025. This suggests many of the citations may have been issued for failing to update a program at least annually, as required by the regulations.

Section 56.23003(c) requires an operator to solicit input from miners and their representatives in developing and updating the program. MSHA issued twenty-four citations pursuant to this provision, with eighteen issued by the Dallas district office.

Finally, Section 56.23004 requires metal/nonmetal operators to make the written program available for review and inspection by MSHA personnel and miners’ representatives, as well as to provide a copy upon request. Eighteen citations were issued by MSHA at fifteen different mines over the last two years. All were non-S&S, and none were high negligence.

Looking Ahead

It will be interesting to monitor ongoing enforcement of the rule and consider whether MSHA increases the gravity of citations over time, whether operators are cited for failing to update their plans as conditions change, and whether operators are cited more severely under the rule following accidents or injuries relating to surface mobile equipment.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will post updates on the Mine Safety blog as additional information becomes available.

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A version of this article was previously published in Pit & Quarry magazine.

Quick Hits

• In a nonprecedential ruling, the Third Circuit ruled in favor of Shippensburg University, finding that a secretary’s accommodation request to work remotely due to an alleged disability was unreasonable.
• The court noted that the undisputed facts indicated that the secretary had several in-person job responsibilities.
• This case emphasizes the importance of accurately outlining in-person responsibilities in job descriptions, particularly in the context of ADA accommodation requests.

In a nonprecedential ruling in Sheehan v. Shippensburg University, the Third Circuit upheld a summary judgment in favor of Shippensburg University in a disability discrimination lawsuit filed by a psychology department secretary, alleging violations of the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA), and the Rehabilitation Act (RA).

The secretary, who had been allowed to work remotely during the 2020 to 2021 school year amid the COVID-19 pandemic, requested to work remotely as an accommodation in December 2021 following the emergence of a new strain of the virus. The university denied the secretary’s accommodation request, explaining that working in the office is an essential function of her job. The university later terminated her employment after she refused to return to the office.

In an opinion by Circuit Judge Thomas Hardiman, the Third Circuit held that “a fully-remote accommodation would have been unreasonable given [the secretary’s] duties.” Specifically, the Third Circuit referenced undisputed facts that the secretary’s “position involved many in-person tasks such as running errands on campus, putting notes on faculty members’ doors, going to the print shop, unlocking doors, hanging up flyers, and interacting with students in the psychology department.” The court also noted that the secretary had admitted that when she worked remotely, some of these duties were not fulfilled or were handled by secretaries from other departments who worked overtime.

The Third Circuit rejected the secretary’s argument that these in-person tasks could be covered by student employees or graduate assistants. The court stated that having those workers perform the tasks is not an accommodation designed to help the secretary perform the essential functions of her position, but rather a “request to be exempted from an essential duty,” quoting prior case law. (Emphasis in original). Further, the secretary was supposed “to supervise the graduate assistants to ensure they are physically present for their assigned hours in the department.” The Third Circuit also noted that the psychology department only hires one student worker when classes are in session. The university “is not required to hire more student workers to accommodate” the secretary, the court stated.

Key Takeaways

The Third Circuit’s ruling in Sheehan v. Shippensburg University, while not precedential, highlights how federal courts are approaching accommodation claims for remote work after employers’ return-to-office mandates. Central to the ruling were the undisputed facts that the secretary’s role included many tasks that required in-person work, including locking doors, hanging up flyers, interacting with students, and supervising the attendance of graduate assistants.

Notably, the court found that requiring other employees to perform those tasks is not a reasonable accommodation because it exempts the employee from those essential job responsibilities rather than assists the employee in performing those essential functions, and because, in some cases, it would have required the employer to hire additional student workers to perform them.

Employers with return-to-office mandates may want to note the potential for ADA requests for continued remote work as an accommodation, as well as the risk of disability discrimination lawsuits arising from denied requests. The Third Circuit’s recent ruling indicates that employers, at least in the Third Circuit, will be more likely to succeed in defending such claims where they can show that certain essential job responsibilities can only be done in person. Employers may want to ensure that job descriptions accurately reflect in-person job responsibilities.

Ogletree Deakins’ Multistate Compliance Practice Group will continue to monitor developments and will provide updates on the Employment Law, Higher Education, Leaves of Absence, Multistate Compliance, Return to Work, and State Developments blogs as additional information becomes available.

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Quick Hits

Working students may not work more than twenty hours per week during the academic term in order to maintain their preferential status regarding social security contributions.

For interns, it is important for employers to distinguish between mandatory and voluntary internships so that any obligation to pay compensation can be assessed.

Summer workers may be particularly attractive because qualifying short-term employment can be exempt from social security contributions.

Working Students: Temporary Employment With Special Social Security Rules

Working students are employees and generally enjoy the same protections under labor law as other employees—from protection against termination of employment and vacation entitlement to the right to continued pay in the event of illness. However, working students receive preferential treatment regarding social security, meaning they do not pay the full social security contributions: Anyone enrolled at a university who works no more than twenty hours per week during the academic term is exempt from health, long-term care, and unemployment insurance. The obligation to pay into the pension insurance system, however, remains in effect. Overall, working students retain more of their gross pay as net pay. For this reason, employers often request a current certificate of enrollment at the start of employment and at the beginning of each new semester.

The twenty-hour limit must be strictly observed. It applies during the academic term. Although working hours may be temporarily exceeded during breaks between terms, employers often carefully document the working hours of working students to ensure that their employment does not jeopardize their working student status. If the twenty-hour limit is exceeded during the academic term, the working student privilege no longer applies—with the result that social security contributions may have to be paid retroactively. The social insurance agencies regularly review this during audits.

Another practical consideration: Working student status requires that one’s studies remain the primary occupation. However, students who are no longer actively pursuing their studies do not meet the requirements.

Interns: Mandatory Internship or Voluntary Internship?

The classification of interns under labor law depends largely on whether the internship is mandatory or voluntary. This distinction has significant implications for employers, particularly regarding the obligation to pay compensation.

Mandatory internships, which are required as part of a school or higher education program, are not subject to the Minimum Wage Act (Mindestlohngesetz (MiLoG)). The legislature assumes that the primary focus here is on the educational purpose rather than the work performance itself. Employers are therefore not required to pay the statutory minimum wage. Compensation for mandatory internships is not required by law; if the employer wishes to pay compensation, the amount can be freely agreed upon.

The situation is different for voluntary internships. These are generally subject to the Minimum Wage Act, at least if the internship lasts longer than three months. The three-month limit refers to the actual duration of the internship. If this limit is exceeded, the statutory minimum wage must be paid starting on the first day of the internship, not just from the fourth month onward. For such voluntary internships lasting more than three months, the employer must pay the statutory minimum wage. As of 2026, this amounts to EUR 13.90 gross per hour. Violations of minimum wage requirements can have significant and far-reaching consequences.

Regardless of the issue of compensation, the following applies: Interns are not employees, let alone second-class employees. The primary focus of their work is transferring skills and knowledge and gaining insight into the company or the profession. Statutory employee protection regulations, such as the Working Hours Act, apply in full.

A common pitfall in practice is the incorrect classification of a purported internship as an employment relationship. If the intern is primarily used as a regular employee and there is no longer a discernible educational purpose at the forefront, the internship can be reclassified as an employment relationship—with all the resulting consequences, such as the obligation to pay the minimum wage.

Summer Workers: Properly Structuring Short-Term Employment

Summer workers are typically high school students or college students who are employed for a short period during school breaks or the semester break. Under social security law, short-term employment offers significant advantages with regard to Section 8(1) No. 2 of Book Four of the German Social Code (Sozialgesetzbuch IV (SGB IV)): If the employment is limited from the outset to three months or seventy working days in a calendar year and is not carried out on a professional basis, the employment is exempt from mandatory insurance in all branches of social security (statutory health and long-term care insurance, unemployment insurance, and pension insurance).

The criterion of whether the employment is carried out on a professional basis is of particular practical importance here. For high school students and college students who hold the job alongside their education, it is generally not considered to be carried out on a professional basis. For other individuals—such as unemployed persons—however, short-term employment may be classified as being carried out on a professional basis if it is not merely of minor economic significance. This is typically assessed carefully on a case-by-case basis before the employment begins.

Legally, summer jobs are generally considered fixed-term employment relationships. To be valid, the fixed-term provision in the contract must comply with the requirements of the Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz (TzBfG)). In particular, the written form requirement under Section 14(4) TzBfG must be strictly observed: The fixed-term employment contract must be concluded in writing (i.e., with handwritten signatures from both parties) before the employee begins work. A verbal agreement, an exchange of emails, or a delayed conclusion of the contract after work has begun renders the fixed-term provision invalid and results in an indefinite employment relationship. These mistakes occur frequently in practice—especially with summer workers who are brought in on short notice. During the summer break, the human resources department is often understaffed, which further contributes to such mishaps.

If minors are employed as summer workers, the provisions of the Youth Employment Protection Act (Jugendarbeitsschutzgesetz (JArbSchG)) must also be observed. Minors aged fifteen and older may generally not work more than eight hours per day or more than forty hours per week. If they are still subject to full-time compulsory education, employment during school breaks is generally permitted for no more than four weeks per calendar year. Night and weekend work is permitted only in very limited exceptional cases.

Takeaways

Employing working students, interns, and summer workers offers companies flexibility—but requires careful planning and attention to employment law. Errors in contract drafting, social security classification, or compensation can have significant negative consequences. The specific characteristics of each form of employment and the timely review of internal processes are therefore relevant well in advance of the summer season.

Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will post updates on the Cross-Border and Germany blogs as additional information becomes available.

Anna von Lieres und Wilkau is an associate in the Berlin office of Ogletree Deakins.

Maximilian Gössling contributed to this article as a legal trainee in the Berlin office of Ogletree Deakins.

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Quick Hits

• The Supreme Court ruled that the Equal Protection Clause and Title IX allow states to designate school sports participation based on biological sex and that the laws do not unlawfully discriminate against transgender individuals.
• The Court found that Title IX does not require schools to make exceptions to biological sex-based sports to allow biological males who identify as female and who may have taken puberty-delaying medication or hormones.
• The Court found that the Equal Protection Clause permits biological sex-based distinctions in sports participation based on general physical differences between males and females.

Ruling in a pair of consolidated cases—West Virginia v. B..P.J. and Little v. Hecox—the Supreme Court upheld laws in Idaho and West Virginia that require designated female sports teams at public schools, colleges, and universities to be based on biological sex, thereby restricting transgender women and girls from participating on female-designated sports teams consistent with their gender identity.

The decision has significant implications for schools, colleges, universities, and other educational institutions.

Background

West Virginia v. B.P.J., No. 24-43, involved West Virginia’s “Save Women’s Sports Act,” enacted in 2021, which banned students who were biologically male at birth from participating in competitive or contact sports designated for female students in public secondary schools and colleges. A a transgender girl, who first started transitioning in third grade and began taking puberty-delaying medication and estrogen before puberty, challenged the law alleging that the categorical prohibition on transgender girls playing on girls’ sports teams violated Title IX and the Equal Protection Clause.

The Little v. Hecox case, No. 24-38, involved a transgender woman and Boise State University (BSU) student who was barred from trying out for BSU’s women’s track and cross-country teams based on Idaho’s “Fairness in Women’s Sports Act” (HB 500), which categorically banned transgender women and transgender girls from participating in women’s and girls’ sports at public schools at all levels, from elementary school through college. The student alleged the law, which was signed into law by Idaho Governor Brad Little in March 2020, violated the Equal Protection Clause.  

The Majority’s Decision

Writing the opinion of the Court, Justice Brett Kavanaugh concluded that Title IX allows schools to provide separate women’s and men’s teams as defined by biological sex. The Court held that separate teams for biological males and females are reasonable, given the inherent physical differences between the sexes. The Court also specifically noted that in recent years, twenty-seven states, the National Collegiate Athletic Association (NCAA), the U.S. Olympic and Paralympic Committee (USOPC), and the International Olympic Committee (IOC) have all drawn the same biological line.

The Court also rejected an argument that its prior ruling in Bostock v. Clayton County was relevant in this case, explaining that Title VII of the Civil Rights Act of 1964 concerns employment and generally requires that men and women be treated without regard to sex, whereas Title IX authorizes separate men’s and women’s sports teams. The Court concluded that “Title VII and Bostock are not relevant in this very different statutory and factual context.”

Justice Neil Gorsuch, who authored the Bostock opinion, stated in a concurring opinion that Bostock, “supports, not undermines, the Court’s conclusion” because both cases turned on biological sex. But Justice Gorsuch wrote, “It is a mistake to assume that, just because firing someone in part because of his biological sex amounts to unlawful discrimination in violation of Title VII, sponsoring a single-sex sports team limited to biological women or girls must also amount to unlawful discrimination in violation of Title IX.”

As to the constitutional challenge, the Court applied intermediate scrutiny, under which sex-based classifications are permissible only when substantially related to an important governmental objective. The Court agreed with the States that safety and competitive fairness are important interests and that limiting women’s and girls’ sports to biological females is substantially related to those interests. The majority held that States are not required to conduct an individual-by-individual comparison of athletes’ capabilities to satisfy intermediate scrutiny, reasoning that the validity of a classification depends on its relation to the overall problem rather than its application in any individual case. The Court emphasized the “enormous practical and administrability problem” that would arise if courts had to make individualized, athlete-by-athlete assessments.

The Dissent

Justice Sonia Sotomayor, joined by Justices Elena Kagan, and Ketanji Brown Jackson, concurred in part and dissented in part. The dissent agreed that the Title IX claims fail, though on a narrower basis than the majority relied. Justice Sotomayor noted that the majority concluded that “sex” means “biological sex” in the sports context, and instead argued that the Court should have proceeded as they did in Bostock “on the assump­tion that ‘sex’ in Title IX refer[s] only to biological distinctions be­tween male and female.” As to the constitutional argument, she maintained that the Court’s equal protection cases require courts to scrutinize whether a sex classification is overbroad as applied to a discrete, readily identifiable subclass.

Key Takeaways

For educational institutions that receive federal financial assistance, the ruling indicates that categorical bans on transgender students participating in women’s and girls’ sports do not violate Title IX. This interpretation of Title IX aligns with the current administration’s enforcement posture, which has sought to enforce a binary and immutable interpretation of biological sex that disregards individual gender identity. The ruling could have further implications under Title IX for educational institutions for sex-based restrictions and policies designed to protect opportunities for women and girls, potentially changing their compliance obligations.

Twenty-seven states have enacted laws restricting transgender participation in school sports: Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Two other states—Alaska and Virginia—have bans in place through state regulations or agency policies.

Schools and universities in those states may need to reassess whether existing institutional policies need to be revised to conform to (or not exceed) what the Supreme Court permits.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Higher Education Practice Group, and Sports and Entertainment Industry Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Higher Education, Sports and Entertainment, Idaho, and West Virginia blogs as additional information becomes available.

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Quick Hits

• The Supreme Court reaffirmed that the Fourteenth Amendment grants automatic citizenship to virtually all children born on United States soil (i.e., “birthright citizenship”).
• The ruling affirmed lower court rulings that enjoined an executive order by President Donald Trump, which sought to restrict U.S. citizenship conferred at birth to children with at least one parent who is a U.S. citizen or a lawful permanent resident.
• The ruling preserves the status quo and the long-standing legal precedent of birthright citizenship in the United States.

The ruling by Chief Justice John Roberts, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Jackson, preserves longstanding precedent on birthright citizenship, confirming that “a child born on American soil and subject to American law was made an American citizen.” Employers need not take any action in response to this decision.

The Court held by a majority that “subject to the jurisdiction thereof” within the Citizenship Clause of the Fourteenth Amendment encompasses all persons born on U.S. soil, with only narrow exceptions (such as for children of foreign diplomats). The majority rejected the government’s domicile-based interpretation of the citizenship clause, finding it unsupported by the text, history, and precedent of the Fourteenth Amendment.

Justices Jackson (joined in part by Justice Sotomayor) and Kavanaugh concurred. Jackson emphasized the Fourteenth Amendment’s broad guarantee of birthright citizenship for all persons born in the U.S., while Kavanaugh said the case should have been decided on statutory grounds, leaving open Congress’s ability to limit birthright citizenship in the future.

Multiple dissenting opinions, led by Justice Clarence Thomas (joined by Neil Gorsuch) and joined separately by Justices Samuel Alito and Gorsuch, contend that the Citizenship Clause requires domicile—not mere birth on U.S. soil—and that the majority’s broad ruling “devalues” American citizenship by constitutionalizing a rule most nations have abandoned.

Executive Order Struck Down

The Court upheld lower court rulings that had enjoined President Donald Trump’s Executive Order 14160, which was issued on his first day in office on January 20, 2025. That order sought to limit U.S. citizenship conferred at birth (“birthright citizenship”) to children who have at least one parent who is a U.S. citizen or a lawful permanent resident (also known as a green card holder). Multiple lawsuits challenging the executive order’s constitutionality were filed in the subsequent months, resulting in a Supreme Court ruling in a related case (Trump v. CASA, Inc.) that limited the authority of federal district courts to issue nationwide injunctions but did not address the constitutionality of Executive Order 14160.

In summarizing their holding and acknowledging the government’s domicile-based interpretation, the majority noted the Court had “exhaustively canvassed the test and history of the Citizenship Clause” and at no point could it find evidence in the historical record that the congressional ratifiers of the Fourteenth Amendment “thought themselves to be imposing a domicile limitation.”

In closing its opinion and affirming the decision of the District Court for the District of New Hampshire, the majority noted the “Framers of the Fourteenth Amendment extended [the promise of citizenship] to ‘every free-born person in this land,’” concluding “[w]e keep that promise today.”

Status of Executive Order 14160

Executive Order 14160 remains enjoined and unenforceable. Consistent with the lower courts that had heard this case, the Supreme Court ruled that Executive Order 14160 contradicted the plain language of the Fourteenth Amendment. In addition, U.S. Citizenship and Immigration Services’ (USCIS) July 2025 implementation plan, which outlined how the executive order would have been applied if upheld, has no further legal effect. Citizenship continues to be conferred at birth to all children born in the United States, consistent with long-standing law and policy, with limited exceptions, such as for children born to foreign diplomats.

What This Means for Employers

The ruling preserves the status quo and the long-standing legal precedent of birthright citizenship in the United States. Because the executive order has been blocked by multiple courts since January 2025 and has never taken effect, employers need not take action in response to this decision. However, the legislative landscape may continue to evolve, and employers should remain attentive to potential efforts by Congress to codify statutory restrictions on birthright citizenship.

While no action is required today, the legal and legislative landscape may continue to shift. Employers are encouraged to monitor any future developments, including potential Congressional action or state-level measures, that could affect their nonimmigrant workforce.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments related to this decision and provide updates on the Immigration blog as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

For more insight into this development and other critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

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Quick Hits

• The DOJ issued an opinion finding that the EEOC’s guidelines on disparate impact liability under Title VII are unconstitutional, reasoning that they impose liability on employers based on disparate effects alone without regard to intent.
• The DOJ’s opinion emphasizes that the burden of proof regarding the unreasonableness of an employment practice and its causation of disparities lies with plaintiffs, rather than employers.
• The DOJ also found the EEOC’s guidelines on validation studies and voluntary affirmative action plans inconsistent with Title VII, and in the DOJ Office of Legal Counsel’s view, the Constitution.

The DOJ’s Office of Legal Counsel (OLC) concluded that the EEOC’s Title VII guidelines on disparate impact liability are inconsistent with Title VII and the U.S. Constitution because they potentially hold employers liable for workplace policies or practices that result in disparities based on, for example, race or sex, without regard to employers’ intent, and thereby pressure employers into making conscious employment decisions based on race or sex to avoid liability or a threat of liability.

The OLC opinion stated that it is in response to an inquiry from EEOC Chair Andrea Lucas asking for additional legal analysis on the limits of disparate impact liability, a concept first recognized by the Supreme Court of the United States in its 1971 decision in Griggs v. Duke Power Co. The U.S. Congress later codified the burden-shifting framework for disparate impact liability recognized in Griggs with the Title VII of the Civil Rights Act of 1991, codified at 42 U.S.C. 2000e-2(k). The OLC’s opinion suggests disparate impact liability under Title VII is only tenable for “practices that reflect a significant likelihood of intentional discrimination.”

In a statement, the DOJ was explicit that the opinion “helps to implement” President Donald Trump’s Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy,” which directed federal agencies to stop enforcing disparate-impact liability. Meanwhile, the EEOC has already stopped enforcing claims based on disparate impact theories, and on June 4, 2026, the EEOC issued a national enforcement plan formally prioritizing disparate treatment (intentional discrimination) over disparate impact claims that allege disparities without evidence of a pattern or practice of discrimination.

DOJ’s Framework Puts Burden on Plaintiffs

The OLC said “three corrections” are needed to resolve the tensions between disparate impact claims under Title VII and a “color-blind Constitution.” First, employers’ “business necessity” defense should “not [be] a high bar.” Employers need only show “that the challenged practice is rational, convenient, or helpful for serving a valid business purpose.”

The OLC went on to state that “[e]mployment practices are presumptively job-related, and only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.” Moreover, “[w]orkplace requirements and selection procedures—such as background checks, aptitude tests, knowledge-based tests, SAT scores, high-school graduation requirements, or blind auditions—are presumptively job-related,” the opinion stated.

Second, the OLC stated that the burden should be on plaintiffs to plead and prove that a specific employment practice caused the disparity, rather than pointing to workforce imbalance or outside social conditions.

Third, the burden should be on plaintiffs, not employers, to identify an alternative practice that causes less disparate impact and is equally effective for the employer’s legitimate needs, including cost and administrability, the OLC stated.

DOJ Objections to Specific EEOC Guidelines

Uniform Guidelines on Employee Selection Procedures

Under the EEOC’s version of the Uniform Guidelines, 29 C.F.R. part 1607, if a “total selection process” (as defined in the guidelines) has an adverse impact then the employer must show both the “validity and utility of” the selection procedure. The OLC found such validation-study requirements to be “inconsistent with Title VII’s business-necessity defense.” The OLC said they improperly shift work to employers, requiring them to isolate the cause of a disparity, even though Title VII places the causation burden on plaintiffs.

Affirmative Action Guidelines

The DOJ also objected to the EEOC’s framework for voluntary affirmative action plans, 29 C.F.R. part 1608, which establishes a process for employers to discover and address potential disparities. But the DOJ stated that these guidelines endorse unconstitutional racial preferences.

While the Supreme Court of the United States has previously held that Title VII permits certain voluntary, remedial race-conscious affirmative action plans, the DOJ opinion criticized those decisions as inconsistent with Title VII and said they have been “fatally undercut” by more recent Supreme Court precedent regarding racial preferences. Regardless, the EEOC has already backed away from voluntary affirmative action plans and recently submitted a proposal to rescind the 1979 interpretive rule on affirmative action under Title VII

Key Takeaways

While the OLC opinion does not entirely dismiss Title VII disparate-impact liability, it construes it narrowly as only an evidentiary tool for identifying practices that create a strong inference of intentional discrimination—not as a freestanding statistical-parity rule. Still, the finding is not a formal court ruling on the merits of disparate impact liability, which will be decided by federal courts.

Moreover, it is important to note that disparate impact claims may still be pursued by private litigants under federal law. In addition, many states recognize disparate impact liability under their antidiscrimination laws and may provide effective guidance on employers’ compliance obligations. Some states have even moved to reinforce or expressly recognize disparate impact liability over the past year in reaction to the federal government’s efforts to deemphasize enforcement on this basis.

As such, employers may wish to consider conducting privileged proactive audits to evaluate workplace practices and document the business reasons for workplace policies and practices.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Background Checks, Diversity, Equity, and Inclusion Compliance, Employment Law, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• The Supreme Court ruled that the removal provision for Federal Trade Commission members violates the Constitution’s separation of powers.
• The Court’s overruling of a nearly ninety-year-old precedent could impact the president’s authority to remove leaders of other agencies, such as the NLRB and MSPB.

The Trump v. Slaughter Decision

In Trump v. Slaughter, No. 25-332, the Supreme Court ruled 6–3 against a legal challenge by former FTC commissioner Rebecca Kelly Slaughter. In March 2025, President Donald Trump fired Slaughter, stating that her service was “inconsistent” with the administration’s priorities. The Federal Trade Commission Act (FTC Act) states that commissioners may be removed by the president for “inefficiency, neglect of duty, or malfeasance in office.”

In an opinion by Chief Justice John Roberts, the Supreme Court held that such for-cause removal protections violate the separation of powers and the “unity” of the executive branch.

“What text, history, and structure settle, our precedent confirms—the President may remove his subordinates at will,” the Court stated.

The Supreme Court overruled the nearly ninety-year-old precedent in Humphrey’s Executor v. United States (1935), which had upheld statutory for-cause removal protections for commissioners of independent agencies. The Humphrey’s Executor framework permitted Congress to insulate certain agency heads from presidential removal, provided the agency exercised “quasi-legislative” or “quasi-judicial” functions rather than purely executive ones.

The Supreme Court instead held that agencies wielding executive power must be accountable to the president and that “[t]o remain accountable to the President, those officers must be removable by the President.”

In Slaughter’s case, “[t]he tasks [the FTC] undertakes are the very essence of ‘execution’ of the law—precisely the President’s constitutional role,” the Court stated.

Implications for Wilcox, Harris Appeals

The ruling, while focused on the FTC, could have significant implications for the legal challenges brought by former NLRB member Gwynne Wilcox and former MSPB member Cathy Harris, who were removed from their respective boards by President Donald Trump in early 2025.

The National Labor Relations Act, which created the NLRB, states that the president may remove Board members in cases of “neglect of duty or malfeasance in office.” Members of the MSPB, which adjudicates federal employee appeals and enforces civil service protections, have a similar for-cause removal protection.

The Trump v. Slaughter decision suggests that for-cause removal protections for officers of executive agencies are unconstitutional, and that those officers are subject to at-will removal by the president. Thus, it casts doubt on whether either challenge by Wilcox or Harris seeking reinstatement to their respective boards could ultimately succeed.

Key Takeaways for Employers

For employers, the application of the Slaughter decision could make the NLRB and other executive agencies that regulate employers more responsive to the presidential administration and its policy priorities. However, it also introduces uncertainty, as agency leadership—and thus agency policy—may shift more rapidly with changes in administration.

Employers may want to monitor developments in both the Wilcox and Harris litigation, as lower courts will now need to apply the Trump v. Slaughter framework to determine whether those removals were lawful. If the challenges fail, as now appears likely, the administration’s actions will stand—potentially reshaping these agencies’ direction and priorities for the foreseeable future.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs and Traditional Labor Relations blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• Effective July 1, 2026, Indiana’s FAIRNESS Act bars employers from knowingly or intentionally recruiting, hiring, or continuing to employ unauthorized workers.
• The FAIRNESS Act gives Indiana employers a compliance safe harbor when they use reasonable diligence to verify work authorization before recruiting, hiring, or retaining workers, while allowing the attorney general to seek injunctions and license related penalties if violations are not corrected.
• The FAIRNESS Act authorizes the attorney general to enforce the law through notices, investigations, corrective opportunities, and escalating penalties.

Employer Obligations and Safe Harbor

Under the FAIRNESS Act—the acronym stands for “Forging American Independence, Restoring National Exceptionalism Safely and Securely”—it is unlawful for an “employer” (defined as any person, including an agent, that employs employees in Indiana) to knowingly or intentionally recruit, hire, or continue to employ an “unauthorized alien” on or after July 1, 2026. The term “employ” covers engaging an individual’s services or labor for wages or other remuneration, including suffering or permitting someone to work.

Notably, the FAIRNESS Act, codified at Indiana Code 22-5-9, provides a safe harbor. An employer is not in violation if it engaged in “reasonable diligence” before recruiting, hiring, or continuing to employ the individual. Reasonable diligence includes:

• using an electronic verification of work authorization program operated by the U.S. Department of Homeland Security (i.e., E-Verify) to verify work eligibility, except where circumstances would put a reasonable person on notice that the verification was unreliable; or
• engaging in diligence consistent with industry-standard best practices.

Enforcement and Penalties

The Indiana attorney general (AG) is empowered to enforce the FAIRNESS Act. We anticipate that the AG will use Civil Investigatory Demands (CIDs) to seek information for purposes of FAIRNESS Act investigations. CIDs are a powerful investigatory tool, and preparation for acting promptly is key in case the AG issues an employer a CID.

Before bringing an action for a violation of the FAIRNESS Act, the AG must send written notice of probable cause. The employer then has fifteen business days to either (1) provide evidence of reasonable diligence showing no violation occurred, or (2) submit a corrective affidavit attesting that it has dismissed all undocumented immigrants, confirmed work eligibility for all employees, and will not knowingly employ unauthorized aliens going forward. If the employer satisfies either option, the AG cannot proceed with the action.

If the employer does not satisfy either option and the AG determines that probable cause exists, the AG may bring an action to enjoin the violation and seek additional relief.

The statute establishes a graduated penalty structure tied to an employer’s “operating authorizations” (licenses, permits, certificates, registrations, charters, articles of incorporation, and similar authorizations issued by a state or local governmental body):

• First violation (single): Suspension of all operating authorizations at the location of the violation for five business days.
• First violation (multiple): Suspension at affected location(s) for ten business days.
• Repeat violation: Suspension at affected locations for 180 days.
• After 180-day suspension: Permanent revocation of all operating authorizations at affected locations.
• Willful violations (three or more locations, after prior revocation): Permanent revocation of all operating authorizations statewide.

Courts can also impose probationary status for six months to two years, requiring quarterly compliance reports and sworn affidavits. If an employer violates probation terms, it triggers the applicable operating-authorization penalty. Suspension or revocation of a license does not let an employer off the hook for its tax withholding obligations.

Conclusion

The FAIRNESS Act prohibits Indiana employers from knowingly or intentionally recruiting, hiring, or continuing to employ unauthorized aliens. In light of the FAIRNESS Act’s safe harbor provisions, this is a particularly appropriate time for employers with employees in Indiana to assess their existing employment verification processes and strengthen those processes. In the event an employer receives a CID from the attorney general, it is important that the employer understands its compliance obligations.

Ogletree Deakins’ Indianapolis office will continue to monitor developments and will post updates on the Immigration and Indiana blogs as additional information becomes available.

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