Quick Hits

• Under SSB 55408, which amends the Equal Pay and Opportunities Act, Washington employers may now list a fixed pay amount instead of a wage range if only one amount is offered, including for internal transfers; postings that are replicated without employer consent are not considered official job postings.
• Between the law’s effective date and July 27, 2027, employers have five business days to correct a noncompliant posting after receiving written notice and can avoid penalties if the posting is timely corrected.
• The amended law further defines and clarifies two separate remedies, each of which is exclusive: administrative remedies (civil penalties up to $1,000 and statutory damages between $100 and $5,000 per violation) or remedies via private civil actions, including statutory damages between $100 and $5,000 per violation. Each permits statutory damages and considers factors such as willfulness and employer size.

Key Updates to RCW 49.58.110

The key updates to RCW 49.58.110 follow below.

Wage Scale or Salary Range

The wording of the previous statute appeared to require a “wage scale or salary range,” even if all individuals employed in that position had the same pay or the same starting pay. Amended SSB 5408 permits employers that offer only a fixed amount of pay to list only that fixed amount, and they are not required to provide a wage scale or salary range that does not really exist. This also applies for internal transfers where the employer only offers a fixed wage amount.

Definition of “Posting”

Amended SSB 5408 makes clear that a posting does not include a “solicitation for recruiting job applicants that is digitally replicated and published without an employer’s consent.”

Cure Period

For postings between the effective date of Amended SSB 5408 and July 27, 2027, employers must be given the opportunity to correct a job posting that does not meet the requirements of the law. Under the new law, any person may provide “written notice” to the employer that they believe a posting fails to comply with the job pay transparency requirements, and the employer has five (5) business days from the receipt of the written notice to correct the posting and notify any third-party posting entity to correct the posting. The cure opportunity must be provided before the individual may seek any remedy under the law, and if the posting is timely cured, no damages, penalties, or other relief may be assessed.

Damages/Relief

RCW 49.58.110 previously relied on damages sections that arose from the equal pay law as it existed prior to the job posting wage transparency laws. Amended SSB 5408 now further defines and clarifies two separate remedies, each of which is exclusive.

• Administrative remedies. Amended SSB 5408 permits an investigation, encourages conference and conciliation, and, if that fails, permits the director to assess a civil penalty of $500 for a first violation and up to $1,000 for repeat violations, or up to ten percent of the damages. In addition to the civil penalty, costs, and other relief for the affected job applicant or employee, the department may “order the employer to pay each affected job applicant or employee statutory damages of no less than $100 and no more than $5,000 per violation.” Amended SSB 5408 provides factors to be considered when assessing the penalty, including the willfulness of the violation or whether it was a repeated violation; the employer’s size; the amount necessary to deter noncompliance; the purposes of the law; and other factors deemed appropriate.
• Private civil action. Amended SSB 5408 leaves in place an affected job applicant or employee’s right to bring a private right of action. The new law, however, provides that an affected job applicant or employee may be “entitled to statutory damages of no less than $100 and no more than $5,000 per violation, plus reasonable attorneys’ fees and costs.” The court, in assessing statutory damages, may consider the same factors as the agency.

Next Steps

Ogletree Deakins’ Pay Equity Practice Group and Seattle office will continue to evaluate how these changes affect the current litigation in Washington State, monitor the rules process as the Department of Labor and Industries begins developing rules governing the interpretation and enforcement of these changes, and will provide updates on the Pay Equity and Washington blogs as additional information becomes available.

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Quick Hits

• The May 2025 final action dates in the EB-3 categories are unchanged for all countries except India, which has moved ahead by two weeks.
• The May 2025 final action dates in the EB-5 categories are unchanged for all countries except India, which has retrogressed by six months.
• U.S. Citizenship and Immigration Services (USCIS) has confirmed it will accept adjustment of status applications based on the final action dates chart in May 2025.

Source: U.S. Department of State, May 2025 Visa Bulletin

The final action dates chart shows only slight movement since the final action dates chart in the April 2025 Visa Bulletin of the following categories and countries:

• EB-3 India has advanced two weeks from April 1, 2013, to April 15, 2013.
• EB-5 India retrogressed six months from November 1, 2019, to May 1, 2019.

Next Steps

Starting May 1, 2025, individuals with a priority date earlier than the listed final action date can file a Form I-485, Application to Register Permanent Residence or Adjust Status.

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

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Quick Hits

• The Sixth Circuit upheld a jury verdict against a school psychologist who alleged Equal Pay Act violations after she was offered a lower salary than the salary paid to a male psychologist two years earlier.
• The court upheld the jury verdict, determining that a reasonable juror could conclude, based on the evidence of budget constraints and market forces, that the pay differential was based on a legitimate business reason other than sex.
• The case highlights the fine line between legitimate business reasons and discriminatory practices in setting new hire compensation.

On April 2, 2025, a Sixth Circuit panel issued a decision in Debity v. Monroe County Board of Education. The court upheld a magistrate judge’s decision to deny a female school psychologist’s motion for a judgment as a matter of law as to whether the board successfully established its affirmative defense that the pay differential was based on a reason other than sex. The Sixth Circuit further affirmed a magistrate judge’s decision to throw out the jury’s $195,000 damages award for the plaintiff as it was inconsistent with the jury’s finding on liability.

Much of the Sixth Circuit’s decision focused on whether the magistrate judge had properly handled an inconsistent jury verdict in which the appellate court agreed with the magistrate judge’s ultimate conclusion to throw out the damages award.

But the Sixth Circuit additionally found that “a reasonable juror could find that the Board offered” the female school psychologist “a lower salary … for a reason other than sex,” providing an example of how, in some circumstances, budget constraints and market pressures can appropriately influence compensation decisions.

Background

Marina Debity applied for a school psychologist position with Monroe County schools in Tennessee after completing an internship with the district. She alleged she was offered a lower salary than the salary paid to a male psychologist hired two years earlier, who negotiated for his pay. She alleged that when she requested equal pay, the county board of education withdrew her job offer. Debity then brought claims for sex discrimination and retaliation in violation of the Equal Pay Act (EPA), Title VII of the Civil Rights Act of 1964, and the Tennessee Human Rights Act.

Supply and Demand

The Sixth Circuit upheld the jury’s determination that market forces of supply and demand could constitute a legitimate, non-sex-based reason for the pay disparity, an affirmative defense under the EPA. The court’s analysis focused on the testimony of a school district administrator, who testified that when the school hired the previous male school psychologist in 2019, the board was in a “desperate” situation where one of the district’s four psychologists was retiring and another was moving to part-time. This urgency, combined with the lack of applicants, led the board to offer a higher salary. In contrast, Ferguson testified that when Debity applied in 2021, the school already had four full-time psychologists and had not previously employed five.

“It would be reasonable for a juror to conclude that Monroe County had a low demand for psychologists in 2021 with the same supply, one person, to fill the opening,” the Sixth Circuit said. “Therefore, a reasonable juror could believe that market forces of supply and demand caused Debity’s lower offer, not her sex.”

While the Sixth Circuit noted employers “may not use supply and demand as an excuse to discriminate generally by sex just because there are more people from a certain sex applying for a given job,” the school district administrator’s testimony showed there was not this type of “generalized discrimination.” The court said the question of whether Ferguson would have treated a woman applying in 2019 the same as the male psychologist, who was offered more money, was a matter for the jury.

Budget Constraints

The Sixth Circuit further said that an employer’s desire for cost savings can be a legitimate business justification for a pay differential. The school administrator’s testimony showed that the board was “genuinely concerned about the budget.” According to the decision, the administrator “testified that he tried to find enough room in the budget to hire Debity … but could not” because it was a higher priority to hire a full-time teacher at the elementary school.

The court rejected Debity’s arguments that the board could have shifted unused funds from elsewhere, stating that it is not the court’s role to second-guess the board’s budget decisions. “It is irrelevant whether the Board’s budgeting decision was wise or even based on a correct understanding of the facts,” the Sixth Circuit said. “The EPA does not outlaw incompetence—it prohibits discrimination by sex.”

Next Steps

The Debity case highlights the fine line between legitimate business reasons and discriminatory practices in setting new hire compensation. Budget constraints and market forces may, in some situations, be legitimate, nondiscriminatory business reasons that justify certain pay disparities between males and females. In the Debity case, the Sixth Circuit focused on testimony about the low supply of applicants and the immediate need to hire a school psychologist when it hired the male psychologist two years earlier as evidence as to why the male comparator was offered higher pay.

While the Debity decision is a favorable one for employers, employers facing similar market forces and budget limitations when making compensation decisions may still wish to proceed with caution. Employers may want to avoid overreliance on budget constraints and market pressures as vague, general justifications for compensation decisions. Instead, if a pay differential is necessary, despite the employer’s efforts to avoid one, employers may want to keep detailed records of budgetary decisions and the specific circumstances at play.  

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law, Pay Equity, and State Developments blogs as additional information becomes available.

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Quick Hits

• OMB is seeking the public’s input on deregulation, including public comment on and recommendations for potentially outdated or burdensome OSHA regulations, with a submission deadline of May 12, 2025.
• Safety professionals and the public now have the opportunity to suggest the elimination or revision of specific OSHA regulations.
• Potential targets for deregulation pursuant to OMB’s request for information include OSHA’s “walkaround rule,” electronic recordkeeping regulations, and the proposed heat injury and illness prevention program.

On April 11, 2025, the Office of Management and Budget (OMB) published a notice, titled, “Request for Information: Deregulation,” soliciting the public’s comments and deregulatory recommendations with respect to rescinding or replacing agency regulations, including OSHA rules. This request for information (RFI) is in keeping with the Trump administration’s regulatory freeze issued at the outset of the president’s term of office.

On its face, the request for information (RFI) states that “OMB solicits ideas for deregulation from across the country. Commenters should identify rules to be rescinded and provide detailed reasons for their rescission. OMB invites comments about any and all regulations currently in effect.” The RFI continues and states the following:

OMB seeks proposals to rescind or replace regulations that stifle American businesses and American ingenuity. We seek comment from the public on regulations that are unnecessary, unlawful, unduly burdensome, or unsound. Comments should address the background of the rule and the reasons for the proposed rescission, with particular attention to regulations that are inconsistent with statutory text or the Constitution, where costs exceed benefits, where the regulation is outdated or unnecessary, or where regulation is burdening American businesses in unforeseen ways.

Without any parameters or limitations on RFI submissions, it is possible that someone might recommend that all OSHA regulations be eliminated, that the construction standards (29 C.F.R. 1926) be eliminated, or that the recordkeeping requirements be eliminated. It is unlikely that any of these would take place, as the Occupational Safety and Health (OSH) Act requires the agency to issue regulations and collect data concerning workplace injuries and illnesses.

Section 2 of the OSH Act states:

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources —

…

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act[.]

Section 24 of the OSH Act states:

(a) In order to further the purposes of this Act, the Secretary, in consultation with the Secretary of Health and Human Services, shall develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics. Such program may cover all employments whether or not subject to any other provisions of this Act but shall not cover employments excluded by section 4 of the Act. The Secretary shall compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

Consequently, OSHA is effectively obligated by the OSH Act to issue occupational safety and health standards to “assure so far as possible every working man and woman in the Nation [a] safe and healthful” workplace and to collect data concerning workplace safety and health matters. Seeking to eliminate all OSHA standards or recordkeeping rules would require revising the OSH Act.

Which OSHA regulations are probable targets of these efforts? The so-called “walkaround rule” related to who can accompany an OSHA compliance officer during an inspection seems a very likely candidate. Similarly, the electronic recordkeeping regulations may be subject to deletion or elimination. To the extent that OSHA is seeking to implement a heat injury and illness prevention program, it, too, could fall prey to this RFI.

There is no limit on the agency, regulation, or topic that may be submitted pursuant to the RFI. Undoubtedly, there will be an enormous number of suggestions related to OSHA and other agencies—from the U.S. Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives, to the U.S. Department of the Interior’s Bureau of Indian Affairs, to the U.S. Food and Drug Administration (a federal agency of the U.S. Department of Health and Human Services)—to name but a few. Many suggestions will likely be dismissed out of hand, but there will also likely be well-reasoned, thoughtful submissions that do receive at least some attention. The deadline for submissions in response to the RFI is May 12, 2025, and submissions may be made through the website Regulations.gov.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Workplace Safety and Health 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’ New Administration Resource Hub.

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Quick Hits

• The 2024 EEO-1 data collection is set to open on May 20, 2025, and close at 11:00 p.m. (EDT) on June 24, 2025.
• The proposed 2024 Instruction Booklet requires filers to indicate their federal contractor status and requires federal contractor employers with fifty or more employees (but with fewer than one hundred employees) to file EEO-1 reports.
• The proposed 2024 Instruction Booklet removes the option to provide information about non-binary employees.

Shortened Reporting Period

The proposed 2024 Instruction Booklet provides for a shortened reporting period—down to five weeks—from the platform opening date of May 20, 2025, to the filing deadline of June 24, 2025.

Changes to Reporting by Sex

The proposed 2024 Instruction Booklet eliminates the option to report non-binary employees, stating that the reporting provides “only binary options (i.e., male or female) for reporting employee counts.” This change is tied to Executive Order 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

Reporting Based on EO 11246 Continues

Despite the rescission of Executive Order 11246 on January 21, 2025, the proposed 2024 Instruction Booklet and sample 2024 EEO-1 report provide that federal contractors with fifty or more employees are still required to file EEO-1 reports for the 2024 cycle.

Conclusion

Based on documents submitted by the EEOC, the 2024 EEO-1 Component 1 data collection site will open on May 20, 2024, and close on June 24, 2025. In addition, the proposed EEO-1 Instruction Booklet eliminates all references to non-binary employees. Due to the shortened filing period, EEO-1 filers may want to consider working now toward gathering the data necessary for the filings.

Ogletree Deakins’ Government Contracting and Reporting Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance Employment Law and Government Contracting and Reporting 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’ New Administration Resource Hub.

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Quick Hits

• The Second Circuit Court of Appeals reversed a district court’s entry of summary judgment that had been granted in favor of a defendant employer and reinstated the plaintiff’s employment discrimination lawsuit, finding that genuine disputes of material fact existed as to each of the plaintiff’s claims and that the plaintiff was entitled to present the claims to a jury.
• The plaintiff, a former laundromat employee whose employer had discharged her for removing cash from the register and refusing to return it, filed a lawsuit in federal court alleging discriminatory and retaliatory termination, hostile work environment, refusal to accommodate a disability, and unpaid wages.
• The case highlights for employers the value of carefully addressing employee complaints of discrimination and harassment, enforcing workplace policies consistently, and providing training for supervisors.

Background

Natasha Knox, a Black woman of Jamaican descent, was employed as a customer service attendant at three Clean Rite Center laundromats in the Bronx from December 2018 until her employment was terminated in April 2019. During her employment, Knox allegedly experienced derogatory comments from her supervisor. The supervisor allegedly criticized Knox for being “too hood” and “ghetto” to work at Clean Rite. Knox reported these comments to her district lead, who allegedly took no action.

In late January or early February 2019, Knox sustained a broken thumb in a car accident, and in early March, she was instructed by her doctor not to lift more than twenty-five pounds. Knox’s subsequent requests for accommodation in conformance with her doctor’s instruction were allegedly dismissed. One supervisor reportedly told Knox that she “shouldn’t have this job” if she required an accommodation, and her new district lead also made derogatory comments, including that Knox “looked like Aunt Jemima” and “talk[ed] Jamaican” when she became “upset.” Knox further alleged that she was not compensated for extra shifts that she worked at other Clean Rite locations and that she had filed a formal complaint with the new district lead, who did not follow up on her claims.

On April 14, 2019, after taking a taxi to work, Knox took $15 from the cash register to reimburse herself for the taxi fare and placed her taxi receipt in the register, believing she had permission to do so. She was later confronted by her new supervisor, who asked her to return the money—a request Knox refused. Following this incident, the district lead terminated Knox’s employment, citing her removal of cash from the register and her refusal to return it as the reason for the termination.

The Second Circuit Revives Knox’s Claims

Knox filed a lawsuit in the U.S. District Court for the Southern District of New York against Clean Rite and her supervisors. She alleged racial discrimination, failure to accommodate her disability, retaliation, and unpaid wages.

The district court granted summary judgment in favor of the defendants. The district court concluded that Knox had not provided sufficient evidence beyond her own testimony to demonstrate that Clean Rite’s reason for terminating her employment—specifically, her alleged theft of money—was discriminatory. Additionally, the district court determined that Knox’s testimony and sworn affidavit alone were inadequate to establish factual disputes regarding her claims, including those related to unpaid wages.

On April 9, 2025, the U.S. Court of Appeals for the Second Circuit issued a decision reviving the case, holding that Knox had presented sufficient evidence to survive summary judgment on all her claims. In doing so, the court emphasized that Knox had presented evidence of discriminatory comments near in time to her employment termination that could reasonably support an inference of unlawful discrimination. The court also pointed out that Knox’s supervisors had not taken any action in response to her internal complaints of workplace discrimination, which were protected conduct under Title VII of the Civil Rights Act of 1964.

Importantly, the Second Circuit reasoned that Knox had testified in her deposition that other employees had been permitted to take cash from the register to pay for their taxi fares, so long as they left receipts. This, according to the Second Circuit, was sufficient to create an issue of fact concerning whether the reasons provided by Clean Rite were a pretext for unlawful discrimination.

As for the disability discrimination claims, the Second Circuit focused on Knox’s disclosure of her injury and lifting restrictions and the fact that her accommodation request had been denied, even though arguably she could perform other essential functions of the job.

Finally, the Second Circuit held that Knox’s affidavit stating she had been subjected to daily harassment from her supervisor and had worked hours for which she was not paid was sufficient to create an issue of fact relating to her hostile-work-environment and unpaid-wages claims.

Guidance for Employers

The Knox decision provides a helpful reminder to employers of the importance of ensuring that all complaints of discrimination, harassment, and retaliation are taken seriously and investigated promptly. Knox’s complaints to supervisors about racial harassment and failure to accommodate her disability were allegedly ignored, contributing to the Second Circuit’s decision to reinstate her claims.

The Second Circuit’s decision does not alter the “sham affidavit” rule, which prevents a party from creating a genuine issue of material fact by submitting an affidavit that contradicts prior deposition testimony. In Knox’s case, the court found that her affidavit was consistent with her deposition testimony and other evidence presented. This underscores the importance of maintaining consistent and truthful documentation throughout all legal proceedings.

Employers should consider providing regular training to supervisors and managers on antidiscrimination laws, reasonable accommodations, and the proper handling of employee complaints. In Knox’s case, alleged derogatory comments and inconsistent treatment by supervisors played a significant role in the appellate court’s decision. Training can help prevent such behavior and ensure consistency in a respectful workplace.

Finally, employers may want to regularly review and update their antidiscrimination, harassment, and accommodation policies to ensure they comply with current laws and best practices. Clear policies and procedures can help guide employees and managers in handling complaints and accommodation requests appropriately. Relatedly, clear, written policies and procedures concerning items such as expense reimbursement may help reduce or eliminate allegations of selective enforcement, such as those at issue in the Knox case.

Ogletree Deakins’ New York and Stamford offices will continue to monitor developments and provide updates on the Employment Law, Leaves of Absence, and State Developments blogs as additional information becomes available.

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Quick Hits

• On March 24, 2025, Virginia Governor Glenn Youngkin signed SB128 into law, which significantly expands the existing scope of protection to low-wage employees against the enforcement of noncompete agreements.
• Starting on July 1, 2025, covenants not to compete will be prohibited against any employee who qualifies as a “low-wage employee,” meaning any employee who (i) earns less than the average weekly wage in Virginia (currently $1,463.10 weekly or $76,081 annually) or (ii) is entitled to overtime compensation under the FLSA.
• Employers that enter into, enforce, or threaten to enforce a covenant not to compete against a low-wage employee could be subject to injunctive relief, the payment of damages (including liquidated damages), attorneys’ fees, costs, and a civil penalty of $10,000 per violation.
• Covenants not to compete that were entered into (or renewed) before July 1, 2025, are not affected by the changes in the law.

Summary of Virginia’s Amended Noncompete Law

Virginia’s decision to ban noncompete agreements against low-wage employees is not entirely new. As we previously reported, Virginia enacted a law in 2020 that prohibits covenants not to compete against “low-wage employees.” Until recently, the term “low-wage employee” had been defined as an employee whose average weekly earnings are less than the average weekly wage in Virginia. In 2020, the salary threshold for a “low-wage employee” was approximately $62,000 per year. By 2025, that amount had increased to $76,081 per year.

In an effort to expand the protection available to Virginia employees, the amended law still prohibits noncompetes against any employee who falls below the salary threshold, but also includes any employee “who, regardless of his average weekly earnings, is entitled to overtime compensation under the provisions of 29 U.S.C. § 207 for any hours worked in excess of 40 hours in any one workweek.” In other words, starting July 1, 2025, employers can no longer enter into or attempt to enforce noncompete agreements with employees classified as nonexempt under the FLSA.

Fortunately for employers, the amendment does not invalidate or otherwise affect covenants not to compete that were entered into (or renewed) prior to July 1, 2025. As such, employers have a narrow window of time to consider entering into noncompete agreements with nonexempt workers, provided those workers earn more than $1,463.10 weekly or $76,081 annually. Furthermore, the new law allows for the continued use of nondisclosure agreements if they are designed to “prohibit the taking, misappropriating, threatening to misappropriate, or sharing of certain information to which an employee has access, including trade secrets” and confidential or proprietary information.

Key Takeaways

Starting July 1, 2025, Virginia employers cannot enter into or attempt to enforce a covenant not to compete with any workers who are (or should be) classified as nonexempt under the FLSA. Thus, the amended law will offer protection to a significantly larger population of employees than in the past.

Employers may want to consider entering into noncompete agreements now, as the amended law does not apply to covenants not to compete entered into before July 1, 2025, provided that the employee earns more than the average weekly wage in Virginia.

Employers that neglect to carefully evaluate employees’ exempt versus nonexempt status under the FLSA for any agreements entered into after July 1, 2025, could face stiff penalties of $10,000 per violation and potential civil actions from employees.

Ogletree Deakins’ Unfair Competition and Trade Secrets Practice Group and Richmond office will continue to monitor developments and will provide updates on the Unfair Competition and Trade Secrets and Virginia blogs as additional information becomes available.

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Quick Hits

• Utah, West Virginia, and Wyoming lawmakers recently enacted state laws recognizing only two genders, male and female.
• The state legislators acted after President Donald Trump issued an executive order establishing that the federal government’s new policy is to recognize only two sexes, male and female, despite contravening federal law.
• The three states restrict transgender and nonbinary individuals from using public school bathrooms and locker rooms that align with their gender identity.

Utah, West Virginia, and Wyoming joined Iowa and other states in passing state laws redefining gender as binary (e.g., male and female only) and immutable, thus attempting to reject governing Supreme Court of the United States case law recognizing gender identity as a protected characteristic under Title VII of the Civil Rights Act of 1964.

The Supreme Court ruled in Bostock v. Clayton County, Georgia that the firing of an employee because of the employee’s sexual orientation or gender identity constituted unlawful sex discrimination under Title VII. Various courts have since applied Bostock to prohibit discrimination on the basis of gender identity by protecting rights to use bathrooms corresponding to gender identity and to use pronouns reflecting one’s gender identity. Despite the fact Bostock remains good law, on January 20, 2025, President Trump signed an executive order to define sex as binary and immutable. The laws in Utah, West Virginia, and Wyoming track the executive order.

Utah Law

On January 30, 2025, Utah Governor Spencer Cox signed a law requiring transgender and nonbinary people to use bathrooms, locker rooms, and showers that correspond with their sex assigned at birth. The new law applies only to government buildings and public schools, but took effect immediately.

The new law defines female as “an individual whose biological reproductive system is of the general type that functions in a way that could produce ova.” It defines male as “an individual whose biological reproductive system is of the general type that functions to fertilize the ova of a female.”

As of September 1, 2024, Utah’s legal code defines sex as being “male or female, at birth, according to distinct reproductive roles as manifested by sex and reproductive organ anatomy; chromosomal makeup; and endogenous hormone profiles.”

West Virginia Law

On March 18, 2025, West Virginia Governor Patrick Morrisey signed into law a bill establishing only two sexes, male and female, under state law. It defines female as “an individual who naturally has, had, will have through the course of normal development, or would have but for a developmental anomaly, genetic anomaly, or accident, the reproductive system that at some point produces, transports, and utilizes ova for fertilization.” It defines male as “an individual who naturally has, had, will have through the course of normal development, or would have but for a developmental anomaly, genetic anomaly, or accident, the reproductive system that at some point produces, transports, and utilizes sperm for fertilization.” This law will take effect on June 16, 2025.

The law also states there must be a reasonable accommodation, such as a single-occupancy restroom or changing area, for people who are not willing or able to use the facility assigned to their biological sex.

Wyoming Law

On March 5, 2025, the Wyoming legislature passed a bill that defines sex as being male or female at birth. It defines female as “a person who has, had, will have or would have had, but for a congenital anomaly or intentional or unintentional disruption, the reproductive system that at some point produces, transports and utilizes eggs for fertilization.” It defines male as “a person who has, had, will have or would have had, but for a congenital anomaly or intentional or unintentional disruption, the reproductive system that at some point produces, transports and utilizes sperm for fertilization.”

This bill became law on March 14, 2025, without the governor’s signature. It took effect immediately.

On March 3, 2025, Governor Mark Gordon signed a different bill into law that requires public school students to use bathrooms and locker rooms that align with their sex assigned at birth.

That law took effect immediately.

Next Steps

Amid the changes in federal guidance and state law, Bostock remains good law and prohibits harassment and discrimination based on sexual orientation and gender identity. Further, the U.S. Equal Employment Opportunity Commission’s (EEOC) sex harassment guidelines voted on by the EEOC and issued in April 2024 remains active guidance. The EEOC’s acting chair, Andrea Lucas, has stated she wants to rescind all or part of the earlier guidance related to gender identity, in particular bathroom and pronoun usage, once a quorum exists as the EEOC.

Employers in public schools and government buildings in Utah, West Virginia, and Wyoming may wish to review their policies and practices to ensure employees have safe access to single-sex facilities, as required under the Occupational Health and Safety Act’s general duty clause, and carefully evaluate compliance with all applicable, federal, state, and local laws regarding access to bathrooms, locker rooms, dorms, and showers. The restrictions passed in the states do not apply to private employers in private buildings.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, State Developments, Utah, West Virginia, and Wyoming blogs as new information becomes available.

Maria Greco Danaher is a shareholder in Ogletree Deakins’ Pittsburgh office.

Nonnie Shivers is a shareholder in Ogletree Deakins’ Phoenix office.

Scott A. Siegner is a shareholder in Ogletree Deakins’ Richmond office.

Bethany S. Wagner is a shareholder in Ogletree Deakins’ Pittsburgh office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The United States will revoke all existing visas held by South Sudanese passport holders.
• U.S. consulates and embassies abroad will be prevented from issuing any new visas for South Sudanese passport holders.
• South Sudanese passport holders who are not currently in the United States are banned from entering the United States until further notice.

Secretary of State Marco Rubio issued a press release announcing that the State Department would take immediate action to revoke any existing visas and prevent the issuance of any new visas for any individual holding a South Sudanese passport. Secretary Rubio stated that the State Department was implementing this ban in response to the South Sudan transitional government’s refusal to accept South Sudanese citizens who had been ordered removed from the United States.

How Long Will the Restrictions Last?

It is unclear how long this ban will be in effect. The State Department noted that it would review the visa revocation and ban if the South Sudanese government began accepting its returning citizens in cooperation with U.S. removal efforts.

South Sudan was one of the forty-three countries under consideration for a travel ban earlier this month. There are no indicators as to whether the State Department will issue bans for other countries on the list at this time.

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

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Quick Hits

• The Seventh Circuit reiterated that the ADA’s limitation on medical exams and inquiries applies to all employees, not just those with a disability under the ADA.
• Hence, a nondisabled employee subjected to unlawful medical exams or inquiries may recover back pay if, for instance, the employee is off work without pay for some period or is discharged for refusing to undergo an improper medical examination.
• The court’s ruling highlights the importance of properly determining whether to require an employee to undergo a medical or mental health exam, i.e., to ensure that any such exam or inquiry is job-related and consistent with business necessity.

Correctional officer John Nawara had several heated altercations with his supervisor and a heated interaction with human resources and a nurse. The Cook County sheriff’s office placed Nawara on paid leave and mandated he undergo a fitness-for-duty examination and sign medical authorization forms before he could return to work. Nawara refused, and when his paid leave expired, he was placed on unpaid leave. Four months later, Nawara decided to return to the sheriff’s office and returned the authorization forms and underwent a fitness-for-duty examination. Nawara was declared fit for duty and returned to work as a correctional officer.

While on leave, Nawara sued Cook County and the sheriff, alleging the compulsory fitness-for-duty examination and inquiry into his mental health violated §12112(d)(4) of the ADA, which provides:

[An employer] shall not require a medical examination and shall not make inquiries of an employee as to whether such an employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

A jury found for Nawara, determining that requiring him to have a fitness-for-duty exam and to complete medical authorization forms violated the ADA, but it awarded no damages. Nawara subsequently moved the district court to reinstate his seniority and award him back pay. The district court restored Nawara’s seniority but declined to award him back pay, finding that a plaintiff must have a disability under the ADA for a violation of §12112(d)(4) to constitute discrimination on account of disability and, thereby, support back pay.

The Seventh Circuit affirmed the judge’s determination on seniority but reversed on the denial of back pay. The court first noted the ADA provides: “No [employer] shall discriminate against a qualified individual with a disability ….” Id. §12112(a). Second, “[t]he prohibition against discrimination … in subsection (a) shall include medical examinations and inquiries.” Id. §12112(d)(1). And, as to current employees, this means: “[An employer] shall not require a medical examination … of an employee …, unless such examination … is shown to be job-related and consistent with business necessity.” Id. §12112(d)(4)(A) (emphasis added).

The Seventh Circuit read these provisions together to mean that “to prove a violation of §12112(d)(4) is to prove discrimination on the basis of disability under §12112(a).” In other words, because the restriction on medical exams applies to “an employee,” not just disabled employees, and an improper medical exam constitutes discrimination on account of disability under the ADA, nondisabled employees may recover back pay for the ADA violation. The Seventh Circuit remanded the case to the district court to determine back pay.

Ogletree Deakins’ Leaves of Absence / Reasonable Accommodation Practice Group and Indianapolis office will continue to monitor developments and will provide updates on the Leaves of Absence and State Developments blogs as additional information becomes available.

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