August 13, 2025

SuperVision - Labor & Employment Law Insights, Issue 2, August 2025

Jeremy Carroll, Carrie Grundmann, Julian Harf, Eric Iskra, Mitchell Rhein, Isaiah Robinson

Spilman Thomas & Battle, PLLC

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August 12, 2025

Welcome!

Welcome to our latest issue of SuperVision. In this edition, we cover the latest Supreme Court ruling regarding reverse discrimination, navigating lawful DEI approaches, recent trends in unionizing efforts, and the new Virginia whistleblower law.

As always, thank you for reading.

Clarifying Standards for “Reverse” Discrimination, Coupled with Other Recent Changes (see Muldrow), could have Real Implications for Employers

By Carrie H. Grundmann; Addelyn C. Slyh, Summer Associate; and Riley D. Breen, Summer Associate

Did the Supreme Court’s unanimous decision in Ames v. Ohio Dept. of Youth Serv., 145 S.Ct. 1540 (2025), decided in June of this year, make it easier for employees to bring discrimination lawsuits against their employers? The outcome of the case, clarifying the standard for discrimination, certainly appears to leave open the possibility of expanded employer liability under Title VII.

Before turning to the import of the Ames or Muldrow decisions, it is important to understand the law – Title VII of the Civil Rights Act of 1964 (Title VII) – that was the basis for both of these decisions.

Click here to read the entire article.

Understanding DEI Policies in the Workplace Today

By Isaiah C. Robinson

Diversity, Equity and Inclusion (DEI) has been a hot topic. In 2023, the Supreme Court issued its decision in Students for Fair Admissions (SFFA) v. Harvard, 600 U.S. 181 (2023), eliminating race as a factor for college admissions. Immediately after President Trump took office, he focused on private sector DEI, issuing Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which orders federal agencies to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” Additionally, on July 29, 2025, Attorney General Pam Bondi released a memorandum detailing how the Department of Justice will analyze DEI programs vis-à-vis federal anti-discrimination statutes.

While it may seem as though DEI is a new issue due to its prevalence at the forefront of public discourse, its origins date back decades. For example, in 1978, the United States Supreme Court’s decision in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), eliminated diversity quotas. Thus, while the phrase DEI has recently come under scrutiny, there remains – as there has for decades – a role for lawful diversity, equity and inclusion in the workplace. The article provides insight for employers on how to address the changing landscape for DEI programs and initiatives in 2025 in a legally compliant fashion.

Click here to read the entire article.

NLRB’s Acting General Counsel Provides Employers with Sweet Guidance About Union “Salts”

By Mitchell J. Rhein

Unions sometimes use a strategy called “salting” to organize employees. It occurs when a union sends a union member (a “salt”) to an unorganized job site to obtain employment and then organize the employees. Because job applicants are employees under the National Labor Relations Act (NLRA), a salt may be protected from discrimination under the NLRA. In July, the National Labor Relations Board (NLRB) Acting General Counsel, William B. Cowen (AGC), issued guidance instructing NLRB representatives when investigating cases in which a job applicant files a charge against an employer that refused to consider the applicant because he or she was engaged in salting. The memo provides an opportunity for employers to review their hiring processes to avoid getting caught up in charges from a salting campaign.

Click here to read the entire article.

Understanding Virginia's Whistleblower Laws and How Employers Can Avoid Lawsuits

By Jeremy E. Carroll and Julian F. Harf

Virginia has two main laws protecting whistleblowers. The oldest, the Fraud and Abuse Whistle Blower Protection Act (Act), Virginia Code §§ 2.2-3009 et seq., previously applied only to federal and state agencies before being extended in 2016 to local government employees.

The Act has no application in the private sector.

In 2020, Virginia took a number of steps to increase employee protections, including the adoption of new private sector whistleblower protections. Despite differences in the laws applicable to public and private employers in Virginia, employers in both sectors can chart similar courses to avoid whistleblower lawsuits.

Click here to read the entire article.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.