Blog - Month: June 2026
EEOC Sharpens Focus on DEI, ‘Reverse Discrimination’
Federal regulators have stepped up their regulatory focus on corporate diversity, equity and inclusion initiatives and “reverse discrimination,” announcing settlements and lawsuits against notable employers such as Nike as well as smaller companies..
The new push is being conducted under President Trump’s executive order and Equal Employment Opportunity Commission guidance declaring DEI programs and reverse discrimination illegal. Since 2025, the Department of Justice and the EEOC have been targeting employers for these violations, alongside typical workplace discrimination claims involving gender, race and religion.
The new focus has added to employers’ potential liability, and the financial consequences can be significant for those sued.
The Equal Employment Opportunity Commission and the Department of Justice have made clear that DEI enforcement is now a major priority. EEOC Chair Andrea Lucas recently warned Fortune 500 companies that programs labeled as DEI could violate Title VII if employment decisions are influenced by race or sex instead of merit.
Some recent legal actions include:
- The EEOC is attempting to enforce a subpoena against Nike as part of an investigation into whether the company’s workforce representation goals discriminated against white employees and applicants. The agency pointed to company statements about building a “representative” workforce and internal diversity targets.
- The agency sued Coca-Cola Beverages Northeast, alleging the company violated Title VII by holding a women-only networking event that excluded male employees while paying participating women to attend.
- The Justice Department recently settled with PayPal over a pandemic-era investment initiative focused on minority-owned businesses. Federal officials said the case reflects the administration’s broader effort to eliminate what it considers unlawful DEI programs.
At the same time, employers should not assume that scaling back DEI efforts eliminates legal exposure. The EEOC continues to pursue traditional discrimination claims involving harassment, retaliation and hiring bias. Recent cases include a $2 million consent decree involving alleged systemic sex discrimination and a race harassment settlement against another employer.
Proceed with caution
Employers that overreact by dismantling compliance programs may create new problems. Eliminating anti-harassment training, suspending pay equity reviews or abandoning workplace complaint procedures can increase the risk of discrimination claims and weaken defenses if litigation occurs.
Instead, legal experts recommend that employers carefully review workplace policies and programs to ensure hiring, promotions, compensation and development opportunities remain merit-based and job-related.
Key steps employers should consider include:
- Reviewing employee handbooks and anti-discrimination policies.
- Auditing hiring and promotion practices for neutral, job-related criteria.
- Ensuring mentorship and leadership programs are open to all employees.
- Continuing anti-harassment and anti-discrimination training.
- Conducting pay equity reviews under attorney-client privilege.
- Carefully evaluating DEI language used in recruiting materials and internal communications.
- Documenting employment decisions thoroughly.
- Avoiding demographic quotas or preferences tied to protected characteristics.
Another growing concern is litigation risk from individuals. Reverse discrimination lawsuits by white employees have become more common, particularly after a recent Supreme Court ruling made it easier for majority-group plaintiffs to bring discrimination claims. One widely watched case involved a former Novant Health executive who won a $4.8 million verdict after alleging he was terminated as part of a diversity push.
Review your coverage
With employment litigation risks rising from multiple directions, employers should also review their employment practices liability coverage.
EPLI policies can help cover legal defense costs, settlements and judgments arising from discrimination, harassment and wrongful termination claims. As enforcement activity intensifies, maintaining strong EPLI coverage may become increasingly important for businesses of all sizes.
When Outsiders Harass Staff, Employers May Still Be on the Hook
Employers generally understand their obligations when harassment comes from supervisors or co-workers. The risk becomes less clear when the offender is a customer, vendor or outsider, but the legal exposure does not disappear.
While federal statutes like Title VII of the Civil Rights Act do not explicitly address third-party harassment, the Equal Employment Opportunity Commission and most federal courts apply a negligence-based framework. The focus is on what the employer knew and how it responded. Once an employee reports harassment, an employer’s defense weakens if it fails to act.
Courts have largely settled on a practical standard that if an employer knew or should have known about third-party harassment and failed to take prompt, appropriate action, it can be held liable for allowing a hostile work environment to persist. If the employer takes retaliatory action, it could be liable for retaliation as well.
Who counts as a third party?
In many industries, employees regularly interact with people outside the organization. Any of the following can become sources of harassment:
- Customers or clients
- Vendors or suppliers
- Independent contractors or consultants
- Temp workers or staffing agency personnel
- Building staff, such as security or maintenance crews
Employees in service-heavy sectors, like health care, hospitality, retail or field operations, are at the greatest risk of outside harassment.
What third-party harassment looks like
Third-party harassment is akin to harassment by a supervisor or coworker and must typically be tied to a protected characteristic such as race, sex, age, disability or religion to constitute a legal liability. Common examples include:
- Derogatory jokes, slurs or offensive comments
- Pressure for dates or sexual favors
- Verbal abuse, ridicule or name-calling
- Threats, intimidation or aggressive behavior
- Display of offensive images or materials
- Physical harassment or unwanted contact
In some cases, the harassment is tied to business leverage. For example, a client may imply that it will not sign a contract unless an employee tolerates inappropriate behavior.
Why employer response is critical
The key legal trigger is notice. If harassment is obvious or reported and the employer does nothing or takes weak, ineffective action, it may be viewed as tolerating the conduct.
Courts and regulators expect employers to take “reasonably calculated” steps to stop the harassment. That does not mean every incident creates liability, but inaction often does.
Employers also face risk if they appear to prioritize business relationships over employee safety, such as by excusing misconduct from a high-revenue client.
Steps employers should take
The following steps can reduce liability and protect workers:
- Extend anti-harassment policies to explicitly cover third parties.
- Train managers to recognize and escalate third-party misconduct.
- Provide employees with clear means of reporting harassment.
- Encourage prompt reporting without fear of retaliation.
- Investigate all complaints quickly and document findings.
- Include anti-harassment provisions in vendor and client contracts.
What to do when a complaint is made
When an employee reports third-party harassment, employers should act immediately:
- Acknowledge the complaint and ensure the employee feels safe.
- Conduct a prompt, impartial investigation.
- Limit or end employee contact with the offending individual.
- Reassign accounts or adjust job duties where appropriate.
- Follow up to confirm that the behavior has stopped.
- Document every step taken.
Depending on severity, appropriate action may range from asking a customer to stop to terminating a business relationship or involving security or law enforcement.
The bottom line
Employers cannot control every outsider’s behavior, but they are expected to control how their organization responds. Ignoring the problem is often what creates liability.
Organizations should consider purchasing employment practices liability insurance, which may cover legal fees, settlement and judgment costs in harassment cases. Give us a call to learn more about this important insurance.
Insurers Start Excluding AI Risk in Commercial General Liability Policies, More
Some insurers have begun introducing exclusions for artificial intelligence-related claims from standard business insurance policies, creating potential coverage gaps for businesses that rely on AI tools for marketing, customer service, product development or daily operations.
The changes come after the Insurance Services Office, the industry’s clearinghouse for policy language, introduced three new artificial intelligence exclusions for commercial general liability policies that insurers are beginning to add to coverage forms.
Roughly 86% of all U.S. property/casualty insurance policies contain some form of ISO language, meaning these exclusions could soon become widespread and leave coverage gaps for many employers when their CGL policies come up for renewal. Insurers are also starting to add similar language to other policies with a liability component.
New coverage gap
The three new ISO endorsements include:
- CG 40 47 — The broadest form, excluding coverage for bodily injury, property damage or personal/advertising injury arising out of generative AI.
- CG 40 48 — A narrower endorsement excluding only personal and advertising injury claims tied to AI.
- CG 35 08 — An exclusion applying to products and completed operations liability coverage.
These endorsements could affect how coverage applies to certain AI-related claims, depending on policy language and endorsements.
One of the largest concerns involves Coverage B of the CGL policy, which traditionally covers claims such as defamation, invasion of privacy, misappropriation of advertising ideas or certain intellectual property-adjacent disputes. Under the new exclusions, those claims may no longer be covered if they arise from AI-generated text, images, audio, video or code.
Even businesses using third-party AI tools, rather than developing their own systems, may still trigger the exclusions. In some cases, incidental use of AI may be enough.
The businesses likely to feel the greatest impact are those integrating generative AI deeply into operations, including:
- Marketing and advertising firms using AI-generated campaigns,
- Technology companies embedding AI into products or software,
- Manufacturers relying on AI-assisted product design,
- Professional service firms using AI to draft documents or communications,
- Retailers deploying AI chatbots or recommendation engines,
- Nonprofits using AI for outreach or donor engagement, and
- Employers using AI tools in hiring or HR decisions.
Insurers are not stopping with general liability coverage. AI exclusions are also beginning to appear in:
- Directors and officers liability,
- Employment practices liability,
- Fiduciary liability,
- Cyber, and
- Errors and omissions policies.
Some insurers have already received regulatory approval for AI exclusions in Florida, Connecticut and Maryland. Others, including W.R. Berkley, have adopted broader exclusions that eliminate coverage for claims arising out of the use, deployment or development of AI across multiple lines of coverage.
What you can do
Businesses should expect insurers to ask more detailed questions about AI usage during renewals and underwriting. Companies that fail to evaluate potential coverage gaps could find themselves uninsured for lawsuits, regulatory investigations or shareholder claims tied to AI-generated content or decision-making.
Organizations should consider taking the following steps:
- Identify where AI is being used throughout the organization.
- Strengthen internal AI governance and oversight procedures.
- Require human review of AI-generated content and decisions.
- Train employees on acceptable AI use.
- Evaluate contracts with AI vendors and third-party providers.
- Discuss AI exposures and coverage gaps with us before renewal.
- Explore specialized protection options.
Some organizations may ultimately need dedicated technology errors and omissions coverage, cyber liability insurance or emerging standalone AI insurance products designed to address AI-related risks. Call us with questions.
New 5% Retention Cap for California Contractors
California construction firms must now account for a major shift in how retention payments are handled on private projects. Senate Bill 61, which took effect Jan. 1, 2026, capped retention at 5% on most private commercial construction projects in the state, halving what had long been the standard 10% withholding.
Retention is money withheld from progress payments until a project is substantially complete. Owners have traditionally used retention as leverage to ensure contractors finish the job, address punch-list items and correct deficiencies. In turn, general contractors often withhold the same percentage from subcontractors.
Before SB 61, a 10% retention was common across California private construction projects. Contractors and subcontractors often had to finance payroll, materials and overhead costs while waiting months to receive the final portion of their earned revenue.
Supporters of SB 61 argued that the old system placed too much financial strain on contractors and subcontractors, particularly smaller firms operating on tight margins. By reducing retention to 5%, the law is intended to improve cash flow throughout the construction chain while still giving owners financial protection.
The law applies to private nonresidential construction projects and mixed-use residential developments taller than four stories for contracts executed on or after Jan. 1, 2026. Residential projects and smaller mixed-use developments are generally exempt.
The new rules are straightforward:
- Owners cannot withhold over 5% when making progress payments to contractors.
- Contractors cannot withhold more than 5% from subcontractors.
- Total retention on the project cannot exceed 5% of the contract price.
- If the prime contract specifies retention below 5%, subcontract retention must match that lower percentage.
Courts are required to award attorney’s fees to the prevailing party in compliance disputes, and the statute cannot be waived through contract language.
For contractors, the biggest challenge may be managing the transition. Projects signed in 2025 may still operate under 10% retention terms, while subcontracts issued in 2026 may be limited to 5%. That can create temporary cash-flow gaps for general contractors caught between old and new rules.
What you can do
- Review and revise contract templates to account for the new requirements.
- Ensure subcontract retention mirrors primary contract requirements.
- Update accounting and billing procedures to track projects under different retention structures (if you still have projects signed in 2025).
- Communicate expectations clearly with subcontractors and suppliers.
- Reassess bonding requirements and risk-management practices.
Many industry observers expect the transition will become routine over time. States that previously adopted similar retention caps saw little disruption after implementation.
Workplace Violence Prevention Training Deadline Approaching Quickly
California employers are fast approaching another important compliance deadline under the state’s workplace violence prevention law.
By July 1, employers with 10 or more employees must provide annual workplace violence prevention training to staff and review their workplace violence prevention plan. The requirement stems from Senate Bill 553, codified in California Labor Code Section 6401.9, which took effect July 1, 2024.
This year marks the second annual compliance deadline under the law. In addition to yearly retraining, employers must also provide workplace violence prevention training to all new hires when they begin employment.
Cal/OSHA has been actively enforcing the law during workplace safety inspections, making it important for employers to ensure their plans, training and record-keeping procedures are current. Violations can result in penalties ranging from $18,000 to $25,000 per violation.
The law requires covered employers to maintain a written workplace violence prevention plan that addresses how the company will identify, evaluate and respond to workplace violence hazards.
At a minimum, employers should annually review whether:
- The individual responsible for administering the plan is still correctly identified,
- Reporting procedures remain clear,
- Emergency response procedures are up to date,
- Workplace violence hazards have changed,
- Incident investigation procedures are functioning properly, and
- Employees understand how to report concerns without fear of retaliation.
Employers should also review violent incident logs and prior investigations to determine whether any patterns or deficiencies need to be addressed.
Training requirements
The law requires employers to provide effective training both upon hire and annually thereafter. Training materials must be easy for employees to understand and should address hazards specific to the workplace and employees’ job duties.
Required training topics include:
- The employer’s workplace violence prevention plan,
- How employees can participate in the plan,
- Definitions and requirements under Labor Code Section 6401.9,
- How to report workplace violence incidents or threats,
- Protections against retaliation for reporting concerns,
- Job-specific workplace violence hazards and preventive measures,
- Emergency response procedures, and
- The purpose of the violent incident log and how employees can access related records.
Employers must also provide employees with an opportunity to ask questions and receive additional information during the training.
Record-keeping obligations
The law also includes extensive record-retention requirements. Employers must maintain:
- Hazard identification and correction records for at least five years,
- Violent incident logs for at least five years,
- Incident investigation records for at least five years, and
- Training records for at least one year.
Recent changes under SB 513 also expanded workplace training record requirements. Employers should ensure training records include the employee’s name, the trainer’s name, the competencies covered and any certifications issued.
Breakdown of penalties
Serious violations: Fines can reach up to $25,000 per violation. This applies if an employer lacks the mandated Workplace Violence Prevention Plan (WVPP) or fails to properly train staff.
Willful or repeated violations: Fines scale up to a maximum of $158,727. This is triggered when an employer knowingly ignores the law or has a history of continuous non-compliance.
Failure to keep records: Improperly maintaining the required “violent incident log” or ignoring incident reporting procedures can also lead to significant civil citations.
A final word
With the July 1 deadline approaching, employers that have not already scheduled their annual review and retraining should do so soon to avoid compliance issues and potential penalties.