November 2025 Employment Law Update
EMPLOYMENT LAW UPDATE
November 2025
By Bob Gregg rgregg@boardmanclark.com
Boardman Clark LLP
Wisconsin SHRM Legislative Sponsor
boardmanclark.com
LEGISLATIVE & ADMINISTRATIVE ACTIONS
Congress has not convened since the federal budget standoff began. So, there is no new legislative action.
Most federal agencies are also not active. The EEOC message, for instance, states that it is not responding due to budget closure. So, no action is being taken regarding new complaint filings, investigations, mediations or issuing of Notice of Right to Sue letters. Expect a surge of case filings once the EEOC reopens and issues those backed up Notices.
LITIGATION
THEME of the MONTH
Two cases this month show the importance of fair and impartial investigation before making discharge decisions. One involved hiring an outside investigator. The other was investigation by another part of the organization as opposed to just relying on the opinion of the employee’s manager. Both independent investigations then served to insulate the employer from charges of bias and bad faith in the termination decisions.
Executive Severance
Two Strikes and You’re Out 10 Million Dollars. The CEO of a large carpet manufacturing company drank too much and verbally sexually harassed a company employee. He received a disciplinary warning that further such behavior could result in termination. A year later he got drunk at a company sales conference and repeatedly called an employee a “F---ing B---h”. The company hired an independent investigator, which verified the misconduct. The company fired the CEO. Under his Executive Agreement a discharge for intentional misconduct resulted in a $10 million reduction in his exit package. The CEO challenged the discharge claiming bad faith, the investigation was a sham to deny him full compensation. The Agreement required that he receive a Notice and 30 days to cure any problem before any For Cause discharge. The court rejected these arguments upholding a lower court’s dismissal of the case. There was no evidence to show the investigation by an independent law firm had been precured or conducted perfunctorily or improperly. The company had previously given the CEO a Notice of this sort of misconduct so there was no need to provide another notice for the repetition. The overt, wrongful behavior had already occurred; it was too late to “cure” it. Gould v. Interface, Inc. (11 Cir, 2025)
Discrimination Age
Older Workers Can Challenge Promotion When Denied the Opportunity to Apply. Usually people cannot challenge a hiring or a promotion outcome unless they first applied for the position and were then rejected. Calderone et al v. Circle K Stores, Inc. (9th Cir, 2025) is a rare exception. Three older workers, ages 55, 56 and 57, experienced mid-level managers, filed an age discrimination case over being denied a Regional Director position to which a younger, age 45, person was promoted. The company defended by claiming none of the three submitted an application for the job and thus did not meet this threshold requirement for bringing a case. However, the court found several reasons to reject this defense. First, the company never announced the position. Instead, it just preselected a person and promoted them into the job without any process or opportunity for anyone else to apply. The company asserted that it deviated from its usual open application process because the person it promoted had previously served as a Regional Director in another region. However, there was evidence that he had performed poorly in that position, so the company’s claim it already had a most qualified person to place in the job, was suspect. In addition, top management had made comments indicating that it did not want older people in Director jobs, making statements such as “too old and out of touch for this business”, questioning older managers on when they would retire, and encouraging managers to seek “only younger people with MBAs”. So the jury could conclude that the company altered their usual process to avoid having the three older managers apply. Rejecting the company’s defense, the court found “it makes little sense to require plaintiffs to demonstrate that they submitted an application when the employer declines to announce the position.”
Supervisors Age Based Comment Overshadowed by Independent Investigation. Often a manager’s biased comments are evidence by which a plaintiff wins a discrimination case. In Gains v. Cook County Sheriffs Dept. (7th Cir, 2025), a new Unit Chief for the Electronic Monitoring Unit made ongoing hostile comments about older workers. Witnesses testified that the new Unit Chief made many and frequent age biased comments. These included a desire to “promote younger people”, asking older officers when they planned to retire and “What are these old people doing here?” She said she did not care to have people with over 25 years of seniority, and when one older officer retired she exclaimed, “One down, five more to go!” referencing the number of over age 50 officers left. Five officers testified they left due to the new Unit Chief’s anti-age statements and treatment of older officers. The plaintiff, a 69-year-old Assistant Deputy Chief, was discharged. His duties included driving around to locations to electronically verify that people wearing monitoring devices were where they were supposed to be, to frequently report his location and to be available for contact by others he supervised. His new Unit Chief reported that he was out of contact and unavailable for hours at a time. The new Chief reported him to the Department’s Office of Professional Review and said she suspected the out of contact time was due to personal business, especially visiting his boathouse. The Professional Review investigator reviewed the Assistant Chief’s vehicle GPS records and locations of monitored individuals and concluded that the officer had spent hours in locations near the boathouse, and nowhere near any of the individuals who wore monitoring devices. He had also failed to have his required body camera on, so no work activities could be established. So the Assistant Chief was fired. He filed a case for age discrimination and violation of his due process rights, alleging his new Chief wanted to rid the unit of older officers and had reported him and then influenced the decision due to his age. The court found that there was ample evidence of age bias on the part of the new Chief. However, this did not overcome the department’s non-discriminatory reason for firing the Assistant Chief. The department’s independent investigation insulated the decision from any biased statements or motivations of the Unit Chief. The investigator independently established facts and circumstances showing a reason for termination, without knowledge of the Unit Chief’s biases. The court upheld the discharge. Biased statements often are the evidence which determines a case. However, such statements do not change the fact that an employee engaged in work violations or wrongdoing or excuse that wrongdoing. So, if there is sufficient evidence, independent of the biased statements, then the discharge can be valid.
Race
Appeals Court Rejects Extreme Standards of Proof - No Racial DNA Tests Required. The 6th Circuit Court of Appeals overturned a lower District Court’s dismissal of two Black truck drivers’ racial harassment case. The drivers alleged they were routinely called “Monkey” and “Monkey Ass” by supervisors. They also alleged they were assigned longer hours, heavier routes, with lower pay than White drivers. The company argued that there were no clearly racial insults, and that one has to make a leap of interpretation to equate “Monkey” with race. The judge accepted this argument. The judge then rejected the plaintiffs’ comparative evidence, finding they could not actually prove the other workers were White. Unless those employes had submitted papers self-identifying their race or plaintiffs submitted genetic information to prove the comparators racial identity. The Court of Appeals overruled the decision. It ruled that the company’s argument about racial terms was not just invalid but “frivolous” and should never have been given any credence by the District Judge. The courts have routinely held that the term “Monkey” has long been used as an egregious hostile reference for Black people and is automatically considered compelling evidence for a harassment case, without any need for further interpretation. The proof of race ruling met a similar fate. No court has ever required such an extreme standard for proving the race of a co-worker. The courts accept the allegations as to the races of the parties involved, unless there is some substantial grounds for question. Plaintiffs do not have to first engage in presenting genetic testing of their co-workers in order to file a case. Thomas & Sneed v. P.A.M. Transport, Inc. (6th Cir, 2025) This bizarre standard was imposed upon plaintiffs to dismiss their case. However, once a standard is adopted, it expands and can come back to haunt employers too. In trying to prove nondiscrimination by showing that both Black and White employees were treated the same, the employer would also have to prove the genetic racial composition of each of the employees. This would be an oppressive burden (as well as creating possible Genetic Information Nondiscrimination Act complications.)
Leave Calculation
HR Miscalculated Leave and Fired Employee Early. A Correctional Officer won $1 million in damages and attorney fees. The Officer took both intermittent FMLA leave and a block of leave for a disability. A Human Resources Specialist informed her that her leave was expired and she must return to work the next day. She asked for an extra day or two. This was denied and her employment was terminated. The Officer sued for violation of FMLA and state leave provisions and under the ADA. She claimed that the agency failed to engage in the interactive process and consider an extra period of leave as ADA accommodation as it had for others. The evidence showed the Officer had not exhausted leave. The HR Manager testified that “it didn’t seem like the Specialist knew what she was doing” when she calculated the leave. So the termination should not have occurred. Under the ADA claim, the court ruled that even if the Officer had exceeded the allotted leave, the agency violated the duty to consider additional leave, especially since the Officer had made such a short extension request. Further, the agency had granted extended leaves to other Officers so there was no apparent undue hardship. Harmon v. Texas Dept. of Criminal Justice (8th Cir, 2025) A lesson from this case is to be careful in calculating FMLA and other leave limits. The FMLA has some tricky provisions which give people more leave than you thought they were due. This is especially so when the Act requires adding-on credit for overtime work or calculating the “regular weekly hours” of salaried employees who routinely work more than 40 hours per week. This can extend leave entitlement well beyond the standard 480 hours (12 “normal” work weeks). State leave laws can also add yet further complications. So carefully measure twice before cutting off the employment.
Polygraph Protection
Failure to Follow Polygraph Testing Procedure Wins Case for Discharged Employee. The federal employee Polygraph Protection Act and multiple state polygraph testing laws provide protection to employees and explicit requirements or procedures before an employer can ask an employee to undergo a lie detector test. Employees generally have the right to specific notices informing them that they can refuse to take a test and cannot be discharged for that refusal. McDoniel v. Kavry Management (Cal. Ct. of App. 2025) was brought by an Assistant Grower at a licensed marijuana growing facility. There had been a theft of $70,000 plus a large amount of product from the facility. The Assistant Grower was called into a room and told he must take a polygraph test about the theft. He failed. He was fired. He sued, claiming he received none of the required notices about the test and his right to refuse. The person giving the test stated a belief that the company had provided the notices and had obtained the employee’s written consent, otherwise she would not have administered the test. However, this had not been done. No notice or consent forms could be produced. A jury found violation of the law and awarded $100,000 in damages plus $212,000 in penalties and attorney fees under the California polygraph law.
OTHER RECENT ARTICLES
These additional, recent articles can be found at BoardmanClark.com in the Labor & Employment section:
Understanding Illinois’s New NICU Leave Law by Emmerson Mirus & Brian Goodman
This post is locked to comments.
