Bench & Bar November/December 2025

KENTUCKY BAR ASSOCIATION

NOVEMBER/DECEMBER 2025 BENCH & BAR MAGAZINE

IN THIS ISSUE: EMPLOYMENT LAW

KENTUCKY BAR ASSOCIATION SINCE 1871

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vol. 89 no. 6 THIS ISSUE OF THE KENTUCKY BAR

ASSOCIATION’S B&B-BENCH & BAR WAS PUBLISHED IN THE MONTH OF NOVEMBER.

CONTENTS 2 President’s Page BY TODD V. MCMURTRY

COMMUNICATIONS & PUBLICATIONS COMMITTEE EILEEN M. O’BRIEN chair , lexington PAUL ALLEY florence ELIZABETH M. BASS hendersonville , tenn . JENN L. BRINKLEY pensacola , fla . KYLE R. BUNNELL lexington FRANCES E. CATRON CADLE lexington ALLISON I. CONNELLY lexington JAMES P. DADY bellevue JOHN M. GHAELIAN lexington P. FRANKLIN HEABERLIN prestonsburg JESSICA R. C. MALLOY louisville SANDRA J. REEVES corbin JOHN SCHAAF georgetown GERALD R. TONER louisville ZACHARY M. VAN VACTOR louisville SAMUEL W. WARDLE louisville LITANY L. WEBSTER cincinnati , ohio MICHELE M. WHITTINGTON lexington

6 KBA Welcomes Katie Shepherd as its First General Counsel

8 A Simple Moment with a Complicated Legacy: Workplace Discrimination in the Years After Bostock BY DANIEL R. GRAHAM 12 Fourth Amendment Implication In OSHA Workplace Safety Inspections BY ANNIE HARB AND JOHN ROGERS FEATURE: EMPLOYMENT LAW

KATHRYN D. WILLIAMS louisville MARK A. WINSOR lawrenceburg

COLUMNS

PUBLISHER JOHN D. MEYERS EDITOR EILEEN M. O’BRIEN

18 Northern Kentucky University Salmon P. Chase College of Law 23 University of Louisville Louis D. Brandeis School of Law

16 Young Lawyers Division BY KYLE R. BUNNELL Effective Legal Writing BY MELISSA N. HENKE 20 University of Kentucky J. David Rosenberg College of Law 24

MANAGING EDITOR SHANNON H. ROBERTS DESIGN & LAYOUT JESI L. EBELHAR

30 Ethics Corner 26 Law Practice Management BY JEFF SALLEE

28 Lawyer Wellbeing BY DR. ERIC Y. DROGIN

THE B&B - BENCH & BAR (ISSN-1521-6497) IS PUBLISHED BI-MONTHLY BY THE KENTUCKY BAR ASSOCIATION, 514 WEST MAIN STREET, FRANKFORT, KY 40601-1812. PERIODICALS POSTAGE PAID AT FRANKFORT, KY AND ADDITIONAL MAILING OFFICES. ALL MANUSCRIPTS FOR PUBLICATION SHOULD BE SENT TO THE MANAGING EDITOR. PERMISSION IS GRANTED FOR REPRODUCTION WITH CREDIT. PUBLICATION OF ANY ARTICLE OR STATEMENT IS NOT TO BE DEEMED AN ENDORSEMENT OF THE VIEWS EXPRESSED THEREIN BY THE KENTUCKY BAR ASSOCIATION, ITS BOARD OF GOVERNORS, SECTIONS, DIVISIONS, COMMITTEES, OR MEMBERS. ANNUAL DUES AND IS NOT LESS THAN 50% FOR THE LOWEST SUBSCRIPTION PRICE PAID BY SUBSCRIBERS. FOR MORE INFORMATION, CALL (502) 564-3795. POSTMASTER SEND ADDRESS CHANGES TO: B&B - BENCH & BAR 514 WEST MAIN STREET FRANKFORT, KY 40601-1812 SUBSCRIPTION PRICE: $20 PER YEAR. MEMBERS SUBSCRIPTION IS INCLUDED IN

BY SHELDON G. GILMAN

46 Who, What, When and Where 32 BOG Minutes BAR NEWS

36 Kentucky Bar Foundation 38 Kentucky Lawyer Assistance Program 40 Continuing Legal Education DEPARTMENTS

Cover and several inside graphics by ©istockphoto.com/JesiEbelhar

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PRESIDENT'S PAGE

BY TODD V. MCMURTRY KBA PRESIDENT FEWER LAWYERS, FEWER MEN, AND A CHANGING WORKPLACE THE FUTURE OF THE LEGAL PROFESSION: DEMOGRAPHIC CHANGES

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he American legal profession is in the midst of an unprecedented generational and technological transformation. Across the country—and especially in states such as Kentucky— the number of active lawyers is poised to decline over the next decade as the Baby Boom generation exits the workforce. At the same time, fewer men are entering the profession, and artificial intelligence (AI) is reshaping the practice of law itself. To reach this conclusion, I reviewed demo graphic data tracked by the Kentucky Bar Association (KBA), the ABA Profile of the Legal Profession 2024, and enrollment statistics from the ABA Section on Legal Education and Admissions to the Bar. Together, these sources point toward a future legal landscape with fewer total law yers, fewer men and a shift to AI generated work.

As of July 2025, the Kentucky Bar Association counted approximately 19,930 active mem bers. Roughly 6,000, or 30%, of those lawyers were born between 1946 and 1964—the Baby Boomer generation. These Boomers form the backbone of the state’s legal expertise, but they are nearing or past traditional retirement age. Even assuming partial retention of experienced practitioners, the next 10 years will see a sharp contraction as Boomers exit the profession. Assuming 15% (600) of Boomer lawyers retire each year with approximately 250 or so joining the profession, the total number of attorneys in Kentucky will drop by about 3,500 or 17.5%. And, although law school admissions have reportedly surged in 2025, there has been a long-term decline in the growth rate of the legal profession. In its demographics report, the ABA stated that in the 20th Century the legal profession grew by about 8% per year. In the 21st Century that has dropped to 1% annual growth. In the past five years, the number of lawyers has decreased. The most likely reason is Boomer retirements combined with fewer law school graduations. In the next 10 years, Boomer retirements will necessarily lead to a net loss of attorneys in Kentucky and across the country.

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1 As we know from personal experience, many lawyers tend to work into their retire ment years. My own father practiced law until he was 80 years old. The ABA reports that 13.1% of attorneys work past age 65 compared to 6.8% of the general popula tion. The Bureau of Labor Statistics reports that only farmers, ranchers and agricultural managers work later into their retirement years than lawyers. Despite our apparent love of our profession and/or our inability to actually retire, in 10 years, the youngest Boomer will be 70 years old. Based upon these statistics and our personal experi ence, it is reasonable to conclude that most Boomers will be retired. So, who comes next and what will that look like? Right now, the ABA reports that 78% of lawyers are “Caucasian/White” with no other ethnic group having more than 7% of the lawyer population. And 58.43% of attorneys are male and 41.24% are female. Things, however, are changing dramati cally. The Law School Admissions Council (LSAC) reported in 2024 that 40.2% of the incoming class of 2023 were “students of color.” That year, women made up 55.8% of the entering class, which it reported was the highest in history. Of this group, 14.7% reported as LGBTQ+. These statistics are to be expected. Frankly, they are positive as they show that America as it is constituted today is going to be well represented in the legal profession. This still leaves a big question unanswered: So, what happened to all of the men? At present, 58.43% of attorneys are male and 41.24% are female. But these statistics are also changing. The number of law students peaked in 2010 at 147,525. As of 2023, that number has decreased to 116,851, indi cating that people are less interested in pursuing the law than in decades past. Most of this decline stems from men not pursuing a legal career. In 2010, there were 78,516 male law students. By 2023, that number had declined to 50,096, a 28,420-person decline. In my own family, my daughter is a lawyer, but both of my sons chose to pursue a career in computer science. I urged both of my sons to pursue a legal career, but they both believed that they could make more money in technology without the time and expense of going to law school. But this anecdote cannot explain where all of the men have gone. Another explana tion could be fewer men pursuing a college degree. The Pew Research Center reported that from its peak in 2011, the population of men attending a four-year college dropped by 1.2 million. The truth is likely in the mix. Either way, a balanced legal profession is preferable. But addressing the decline in male participation in higher education is an issue well beyond my expertise and the scope of this inquiry.

PRESIDENT'S PAGE

2 ADDRESSING AI It is possible, however, that AI will solve any lawyer shortages by allowing fewer lawyers to do more with less. And if the AI “Tech Bros” get their way, we will all be out of job and AI will be running the show. Arma geddon aside, based upon my use of AI, I am convinced it will greatly increase lawyer productivity. Therefore, our demographics problem may be solved by our AI problem.

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AI education. 3

A. AI IN LEGAL EDUCATION:

B. SUPPORT CAREER TRANSITIONS:

NAVIGATING THE DEMOGRAPHIC/ AI TRANSITION What should we do? Here are a few basic points to help fuel the conversation.

I know our law schools are teaching students about AI. This is the right path, as a graduate who can prompt an AI system effectively will outper form one who cannot. It is important, however, that law schools recognize the enormous impact AI will have on the profession. We need more, not less

We have many solo Boomer lawyers who have valuable practices and wisdom to pass to the next gener ation. The KBA can help connect retiring and aspiring practitioners who seek to pass valuable practices to the next generation. We should continue to educate retiring prac titioners about their options and ethical obligations. This is a tre mendous opportunity to move legal practices to aspiring practitioners.

C. INTEGRATE AI RESPONSIBLY:

The KBA’s ongoing CLE programs on artificial intelligence—emphasizing ethics and professional judgment—are a model for proactive adaptation.

CONCLUSION

The combined weight of demo graphic, educational, and technological forces makes one conclusion nearly inescapable: the United States will have fewer lawyers in 2035 than it does today, the majority of those law yers will be women, and AI will be completely infused into the practice of law. The emergence of AI will most likely mitigate the reduced number of lawyers. The next 10 years will be like no other. I am sure it will be remarkably interesting to watch these changes unfold.

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ANNOUNCEMENT

Katie Shepherd K atie Shepherd joined the Kentucky Bar Association (KBA) as its general counsel in mid-October and is the first to hold this position. Prior to joining the KBA, Katie was a partner at Thompson Miller & Simpson, PLC, where she represented healthcare providers in medical malpractice actions. She previously served for 16 years as chief of staff and counsel under both Chief Justice John D. Minton, Jr., and Chief Justice Laurance B. VanMeter. In that role, Katie provided legal and administrative counsel, drafted administrative policies and rules, and developed strategic planning for the Kentucky Court of Justice. “Katie’s extensive experience in private practice and the court system has given her a deep understanding of both the law and our association’s processes, making her an ideal choice as the KBA’s first general counsel. Having worked closely with Katie for many years, I was confident she would be a valuable addition to our team. She brings exceptional insight and leadership and will offer strategic counsel on current matters while guiding future initiatives,” expressed KBA Executive Director John D. Meyers. Katie earned her J.D. from the University of Kentucky J. David Rosenberg College of Law and her B.A. in environmental studies from the University of Kentucky. Upon graduation from law school, she clerked for the Honorable John D. Minton, Jr., on the Kentucky Court of Appeals and gained valuable litigation experience at Bell, Orr, Ayers & Moore in Bowling Green and Bass, Berry & Sims in Nashville, Tenn. THE KENTUCKY BAR ASSOCIATION IS PLEASED TO WELCOME AS ITS FIRST GENERAL COUNSEL

Katie is an active member of the KBA and served for many years on the planning committees for the Annual Convention and the New Lawyers Program. In 2023, she received the KBA President’s Special Service Award. Katie and her husband, Scott, live in Lexing ton with their two daughters.

CALL FOR NOMINATIONS The Kentucky Bar Association is accepting nominations for 2026 Distinguished Judge and Lawyer, Donated Legal Services and Bruce K. Davis Bar Service Awards. DISTINGUISHED JUDGE AWARD DISTINGUISHED LAWYER AWARD 2026 DISTINGUISHED SERVICE AWARDS

Awards may be given to any judge or lawyer who has distinguished himself or herself through a contribution of outstanding service to the legal profession. The selection process places special emphasis upon community, civic and/or charitable service, which brings honor to the profession. BRUCE K. DAVIS BAR SERVICE AWARD Many lawyers take time from DONATED LEGAL SERVICES AWARD Nominees for the Donated Legal Services Award must be members in good standing with the KBA and currently involved in pro bono

Nominations must be received by December 31, 2025. If you are aware of a Kentucky judge or lawyer who has provided exceptional service in these areas, please complete a nominating form.

their practices to provide personal, professional and financial support to the KBA. This award expresses the appreciation and respect for such dedicated professional service. All members of the KBA are eligible in any given year except for current officers and members of the Board of Governors.

Please visit the KBA website at https://kybar.org/About-Us/ Distinguished-Service-Awards

work. The selection process places special emphasis on the nature of the legal services contributed and the amount of time involved in the provision of free legal services.

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FEATURE: EMPLOYMENT LAW

BY DANIEL R. GRAHAM A SIMPLE MOMENT A COMPLICATED LEGACY: with Workplace Discrimination in the Years After Bostock.

I n 2020, the Supreme Court decided Bostock v. Clayton County of Georgia , holding that Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against employees because of their gender identity and sexual orientation. Given the new administration's Title VII enforcement priorities, questions remain as to the practical impact of the Bos tock decision. With these shifting enforcement priorities, as well as subsequent Supreme Court prec edent, there comes some uncertainty in the broader landscape of employment dis crimination. For example, it is difficult to

predict whether, or the extent to which, an employer’s Diversity, Equity, and Inclusion (“DEI”) policy might serve as the basis for a claim under Title VII. Hopefully, this arti cle will provide some clarity for attorneys whose clients must navigate the ongoing shift in the equal employment opportunity paradigm. BOSTOCK , BATHROOMS, AND BURROWS Few facts were needed to appreciate the question faced by the Supreme Court when it decided Bostock . 1 The plaintiffs in all three of the underlying actions (which the Court considered together after granting certiorari

in each case) alleged they were terminated from their jobs for no reason other than their sexual orientation or gender identi ty. 2 Each claimed their termination violated Title VII’s prohibition against sex-based discrimination. 3 The Sixth Circuit found for Aimee Stephens, whose termination followed soon after she submitted a letter disclosing her gender identity to her employer. 4 The Second Cir cuit reached a similar decision with respect to Daniel Zarda, who was fired from his job days after mentioning he was gay. 5 The Eleventh Circuit reached the opposite con clusion, affirming Clayton County’s decision

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to fire Gerald Bostock “for conduct unbe coming a county employee shortly after he began participating in a gay recreational softball league.” 6 The Eleventh Circuit was direct in its holding, stating that “discharge for homo sexuality is not prohibited by Title VII.” 7 On behalf of the 6-3 Supreme Court majority, Justice Gorsuch disagreed, writing that “it is impossible to discriminate against a person for being homosexual or transgender with out discriminating against that individual based on sex.” 8 In other words, the Court applied Title VII’s “simple but momentous” message to find that an “employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 9 Though momentous, the Court’s decision was not entirely unprecedented. In 2012, the Equal Employment Opportunity Com mission (the “EEOC” or “Commission”) reached a similar conclusion, finding that Title VII prohibits employers from dis criminating against employees because of their gender identity. 10 In 2015, the EEOC decided that Title VII protects employees from discrimination because of their sexual orientation. 11 About a year after Bostock , the EEOC affirmed its position by issuing new guid ance as a technical assistance document, outlining some of the ways an employee might face unlawful harassment related to their gender identity. 12 The guidance warned employers against treating work ers in a manner inconsistent with their gender identity, for example, by dictating their dress or behavior, or by denying them access to corresponding single-sex facilities ( e.g. , bathrooms and locker rooms). 13 Sim ilarly, employers were advised that, while it is not unlawful to accidentally misuse an employee’s preferred name or pronoun, the intentional and repeated use of the wrong names or pronouns could contribute to an unlawful hostile work environment. 14 The guidance was short-lived. In 2022, the U.S. District Court for the Northern District

Not long after delivering his 2025 inaugu ral address, President Trump nominated Lucas as acting chair of the EEOC and issued Executive Order 14168. 23 That order echoed the same criticisms as those in Lucas’s dissent, but it took an even stron ger stance against the “ideologues” whose efforts to “eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.” 24 The next day, Acting Chair Lucas affirmed her commitment to following the President’s executive orders by identifying some of her own consistent priorities, which include “defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work[.]” 25 However, the EEOC prematurely lost two of its commissioners (Charlotte Burrows and Jocelyn Samuels), one week after Lucas became acting chair. 26 This left the Commis sion with only two commissioners. Without a third member, the Commission lacked the quorum needed to rescind the revised guid ance, or to rescind other EEOC documents that are inconsistent with the President’s executive orders ( e.g. , its Strategic Plan, 2022-2026, and its Strategic Enforcement Plan, 2024-2028). 27 Similarly, though the agency can continue to file charges and initiate investigations without a quorum, a 2021 resolution pro hibits the EEOC general counsel from commencing or intervening in certain litigation without approval from the Com mission by majority vote. 28 This includes cases which would be most impactful, such as those alleging systemic discrimination and “pattern-and-practice” discrimina tion. 29 With only two commissioners, the Commission also cannot file cases that involve “a major expenditure of agency resources, including staffing and staff time, or expenses associated with extensive dis covery or expert witnesses[.]” 30 Likewise, and perhaps most significantly, the EEOC needs a quorum before it can vote to initiate litigation in which it would take a position contrary to local circuit precedent, as well as those which would “generate public con troversy” or implicate unsettled areas of the law. 31

of Texas vacated it as unlawful, finding that the guidance reflected a misreading of Bostock , and that Bostock only prevents an employer from discriminating against the “status” of an employee’s sexual orien tation or gender identity. 15 According to the court, a more accurate reading of Bostock's holding is that, while employers may not discriminate against employees because of their sexual orientation or gender identity, they may "regulate correlated conduct via specific dress, bathroom, pronoun, and healthcare policies, if otherwise consistent with Title VII case law." 16 The court also found that Charlotte Bur rows, then-chair of the Commission, improperly issued the guidance because she did so without first offering it to the public for notice and comment and then to the Commission for a vote. 17 Rather than appealing the decision, Burrows opted to revise the Commission’s existing Enforcement Guidance on Harassment in the Workplace, this time submitting the proposed revision to a 30-day period of public notice and comment. 18 The Commission then voted to approve the revised harassment guidance in 2024, but in 2025, the Northern District of Texas once again vacated the guidance as unlaw ful, finding that it contravened Title VII’s plain text by “expanding the scope of ‘sex’ beyond the biological binary [and] defin ing discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.” 19 LACKING QUORUM, LUCAS EXECUTES ORDERS In its 2025 decision, the Northern District of Texas noted the dissenting opinion of one Commissioner who voted against revising the guidance – Andrea Lucas. 20 In her dis sent, then-Commissioner Lucas described the revised guidance as an “egregious error” that turned anti-harassment prin ciples “completely upside down.” 21 Lucas further criticized the EEOC for ignoring the “biological reality” of sex, writing that it is not harassment to acknowledge that sex is “binary (male and female) . . . or to use language like pronouns that flow from these realities, even repeatedly.” 22

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FEATURE: EMPLOYMENT LAW

Lacking a quorum did not render the Commission inactive. By January 28, 2025, Acting Chair Lucas announced that she had already made a number of changes within the Commission, consistent with Executive Order 14168, like removing all “statements, policies, regulations, forms, communi cations, or other internal and external messages promoting gender ideology.” 32 Following these changes, the Commission moved to dismiss the lawsuits it previously filed on behalf of individuals who claimed they were discriminated against because of their gender identity, reasoning that the EEOC’s continued involvement in the liti gation “may be inconsistent” with Executive Orders. 33 Only time will tell what Acting Chair Lucas can accomplish with a Commission at full strength, which offers a more robust set of tools; it could mean the elimination of “disparate impact” enforcement as we know it. 34 One way or the other, it seems her pri orities will remain consistent with those of the White House. 35 President Trump’s latest nominee to the Commission, Brit tany Panuccio, seems similarly aligned with the administration’s interpretation of equal employment opportunity laws. 36

18 See 88 Fed. Reg. 67750 (Oct. 2, 2023). 19 Texas v. Equal Emp. Opportunity Comm’n , No. 2:24-CV-173-Z, 2025 WL 1414332, at *10, 14-15 (May 15, 2025). 20 Id . at *3. 21 Commissioner Andrea R. Lucas’s Statement on EEOC Enforcement Guidance on Harassment in the Workplace , U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/commission er-andrea-r-lucass-statement-eeoc-enforce ment-guidance-harassment-workplace. 22 Id . 23 President Appoints Andrea R. Lucas EEOC Acting Chair , U.S. Equal Emp. Opportunity Comm’n (Jan. 21, 2025), https://www.eeoc.gov/news room/president-appoints-andrea-r-lucas-eeoc acting-chair. 24 Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan. 21, 2025). 25 President Appoints Andrea R. Lucas EEOC Acting Chair , U.S. Equal Emp. Opportunity Comm’n (Jan. 21, 2025), https://www.eeoc.gov/news room/president-appoints-andrea-r-lucas-eeoc acting-chair. 26 See Matthew Golden & Emily Steel, Trump Fired E.E.O.C. Commissioners in Late-Night Purge , N.Y. Times, Jan. 28, 2025. 27 Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Work place , U.S. Equal Emp. Opportunity Comm’n (Jan. 28, 2025), https://www.eeoc.gov/news In 2023, the Supreme Court announced another monumental decision, Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College , holding that the race-conscious admissions programs used by Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. 38 Notably, Harvard’s admissions program once was cited as a model for lawful affir mative action plans in college admissions, as well as similar plans used in the employ ment context. 39 In the wake of the Court's Harvard decision, some commenters (including Acting Chair Lucas) observed that a similar, albeit inverse, pattern might emerge, with the decision ultimately serving as a basis for the undoing of workplace DEI initiatives. 40 In March of 2025, Acting Chair Lucas took a number of actions in furtherance Consequently, it will be important to con tinue monitoring developments related to another priority shared by President Trump and Acting Chair Lucas: “rooting out unlawful DEI-motivated race and sex discrimination[.]” 37 DEI, DOA?

of Executive Order 14173, which directs all executive agencies and departments to “combat illegal private-sector DEI prefer ences, mandates, policies and activities. 41 First, she sent letters to 20 law firms to determine whether their “touted DEI-prac tices . . . entailed or resulted in race- and sex-based disparate treatment against white or male employees, applicants, and training program participants[.]” 42 Some of those law firms eventually entered into settlements with the EEOC, agreeing to “no longer categorize any lawful employment or practices (including those addressing equal employment opportunity, accessibility, or reasonable accommodation for religion, disability, or pregnancy) as DEI[.]” 43 A few days after sending those letters, the EEOC and Department of Justice ("DOJ") jointly issued a pair of technical assis tance documents “focused on educating the public about unlawful discrimination related to [DEI] in the workplace.” 44 One of the documents, titled “What You Should Know About DEI-Related Discrimination at Work,” provides a detailed roadmap explaining how the EEOC might handle claims alleging unlawful discrimination based on DEI initiatives. 45 The other is a room/removing-gender-ideology-and-restor ing-eeocs-role-protecting-women-workplace; see also 29 C.F.R. § 1695.2(d). 28 Resolution Concerning the Commission’s Author ity to Commence or Intervene in Litigation and the Commission’s Interest in Information Con cerning Appeals , U.S. Equal Emp. Opportunity Comm’n (Jan. 13, 2021), https://www.eeoc.gov/ resolution-concerning-commissions-authori ty-commence-or-intervene-litigation-and-com missions-0. 29 Id . 30 Id . 31 Id . 32 Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Work place , U.S. Equal Emp. Opportunity Comm’n (Jan. 28, 2025), https://www.eeoc.gov/news room/removing-gender-ideology-and-restor ing-eeocs-role-protecting-women-workplace. 33 See , e.g. , Stipulation to Stay Pending Deadlines & Dismiss with Prejudice, U.S. Equal Emp’t Op portunity Comm’n v. Lush Handmade Cosmetics LLC , No. 5:24-cv-06859-PCP (N.D. Cal. Sept. 30, 2024). 34 See Exec. Order No. 14281, 90 Fed. Reg. 17537 (Apr. 23, 2025); see also Clair Savage and Alex andra Olson, Civil Rights Agency Drops a Key Tool Used to Investigate Workplace Discrimina tion , A.P. News (Sept. 30, 2025), https://apnews. com/article/trump-discrimination-ai-eeoc-dis-

ENDNOTES 1 Bostock v. Clayton Cnty., Georgia , 590 U.S. 644, 653 (2020).

2 Id . at 653. 3 Id . at 654. 4 Id . 5 Id . at 653-54. 6 Id . (internal quotations omitted).

7 Bostock v. Clayton Cnty. Bd. of Commissioners , 723 F. App’x 964 (11th Cir. 2018) (emphasis in original) (internal quotations and citations omit ted). 8 Bostock , 590 U.S. 644, at 660. (emphasis added). 9 Id . at 651-52, 660. 10 Macy v. Holder , Appeal No. 0120120821, 2012 WL 1435995, at *11 (Apr. 20, 2012). 11 Baldwin v. Foxx , Appeal No. 0120133080, 2015 WL 4397641, at *10 (July 16, 2015). 12 Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity , U.S. Equal Emp. Opportunity Comm’n (June 15, 2021), https://perma.cc/9VUBZK2p. 13 Id . 14 Id . 15 Texas v. Equal Emp. Opportunity Comm’n , 633 F. Supp. 3d 824, 831, 847 (N.D. Tex. 2022) (cita tions omitted). 16 See id. at 831, 833-34. (citations omitted). 17 See id . at 844.

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CONCLUSION It is critical for all employers to review their workplace initiatives, and for their counsel to closely monitor any additional updates so they can help ensure their clients remain compliant. Amidst an ongoing sea change in workplace discrimination enforcement and relevant legal authority, maintaining com pliance can be challenging. One way or the other, employers should carefully review all complaints of workplace harassment and discrimination, and they should take mea sures to ensure their employees are treated with kindness, dignity, and respect.

a Hard Look at Their Corporate Diversity Pro grams , Reuters (June 29, 2023), https://www. reuters.com/legal/legalindustry/with-supreme court-affirmative-action-ruling-its-time-com panies-take-hard-look-2023-06-29/. 41 Exec. Order No. 14173, 90 Fed. Reg. 8633 (Jan. 21, 2025). Any organization receiving federal fund ing should be aware of this guidance as exposure under the FCA can involve sig nificant repercussions, like hefty civil fines, 52 treble damages, 53 and in some cases, even criminal liability. 54 The DOJ issued a mem orandum in July, 2025 that gives examples of DEI initiatives that might lead to an FCA investigation, as well as recommen dations on how to avoid FCA liability. 55 The recommendations are numerous, and any attorney representing federal funding recipients obviously should review them in detail before performing a privileged audit of your clients’ relevant programs, policies, and practices. 42 In EEOC Settlement, Four 'BigLaw' Firms Dis avow DEI and Affirm Their Commitment to Merit-Based Employment Practices, U.S. Equal Emp. Opportunity Comm'n (Apr. 11, 2025), https://www.eeoc.gov/newsroom/eeoc-settle ment-four-biglaw-firms-disavow-dei-and-af firm-their-commitment-merit-based. 43 Id. 44 EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination , U.S. Equal Emp. Opportunity Comm’n and Dept. of Justice (Mar. 19, 2025), https://www.eeoc. gov/newsroom/eeoc-and-justice-depart ment-warn-against-unlawful-dei-related-dis crimination. 45 See What You Should Know About DEI-Relat ed Discrimination at Work , U.S. Equal Emp. Opportunity Comm’n (Mar. 19, 2025), https:// www.eeoc.gov/wysk/what-you-should-know about-dei-related-discrimination-work. 46 Id. (cleaned up). As for the one-page guidance document, it contains a similar warning that, depend ing on the facts, “DEI training may give rise to a colorable hostile work envi ronment claim.” 50 The DOJ’s warning of training-based hostile work environment claims should be noted by practitioners. Practitioners should also note that, in May of 2025, the DOJ announced the creation of the Civil Rights Fraud Initiative, which will use the False Claims Act (“FCA”) to inves tigate and file claims against recipients of federal funds that knowingly violate federal civil rights laws, such as those “promot[ing] divisive DEI policies.” 51

parate-impact-a2e8aba11f3d3f095df95d488c 6b3c40. 35 See, e.g. , Nominations of Jonathan Berry, An drew Rogers, Anthony D’Esposito, and An drea Lucas: Hearing Before the Sen. Comm. on Health, Education, Labor and Pensions (June 18, 2025) (statement of Andrea Lucas, Nomi nee for EEOC Commissioner, at 38:30 – 41:44; 01:12:39 – 01:17:15) https://www.youtube.com/ watch?v=R8hz2xWpO4A. 36 See, e.g. , Nominations of Crystal Carey, Brittany Panuccio, and Dr. Brian Christine: Hearing Before the Sen. Comm. on Health, Education, Labor and Pensions (July 17, 2025) (statement of Brittany Ponuccio, Nominee for EEOC Commission er, at 43:32-44:31), https://www.youtube.com/ watch?v=2_D2LmiNGgU. 37 See, e.g., President Appoints Andrea R. Lucas EEOC Acting Chair, U.S. Equal Emp. Opportu nity Comm’n (Jan. 21, 2025), https://www.eeoc. gov/newsroom/president-appoints-andrea-r-lu cas-eeoc-acting-chair. 38 600 U.S. 181. 39 Johnson v. Transportation Agency, Santa Clara Cnty., Cal. , 480 U.S. 616, 638, 107 S. Ct. 1442, 1455 (1987) (citing Regents of University of Cal ifornia v. Bakke , 438 U.S. 265, 316–319, 98 S. Ct. 2733, 2761–2763 (1978)). 40 Commentary: With Supreme Court’s Affirmative Action Ruling, It’s Time for Companies to Take In the more detailed document, employ ers are warned that there are no “general business interests in diversity and equity” that would justify the implementation of an “initiative, policy, program, or practice [if it is] motivated—in whole or in part—by race, sex, or another protected characteristic.” 46 As one example of an unlawful practice, the guidance points to employer-sponsored clubs or groups in which membership is limited to employees belonging to a certain protected class. Employer “sponsorship” includes “making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation[.]” 47 The guidance also warns that the EEOC does not require a higher showing of proof for “reverse discrimina tion” claims, 48 and that depending on the facts, “an employee may be able to plausi bly allege or prove that a diversity or other DEI-related training created a hostile work environment by pleading or showing that the training was discriminatory in content, application, or context.” 49 one-page document titled “What to Do if You Experience Discrimination Related to DEI at Work.”

ABOUT THE AUTHOR

DANIEL R. GRAHAM is an attorney at Tachau Meek PLC, where he focuses his prac tice on commercial and

employment litigation and advises compa nies on compliance, risk management, and day-to-day employment issues. He received his undergraduate degree from Northern Kentucky University (B.A., 2013) and his law degree from the University of Louis ville, Louis D. Brandeis School of Law (J.D., cum laude , 2017). 47 Id . 48 See also Ames v. Ohio Dep’t of Youth Serv’s. , 605 U.S. 303 (2025) (unanimous opinion holding the “background circumstances” rule requiring majority-group plaintiffs to satisfy a heightened evidentiary standard in Title VII claims “can not be squared with the text of Title VII or the Court’s precedents”). 49 What You Should Know About DEI-Related Dis crimination at Work , U.S. Equal Emp. Oppor tunity Comm’n (Mar. 19, 2025), https://www. eeoc.gov/wysk/what-you-should-know-about dei-related-discrimination-work. 50 What to Do if You Experience Discrimination Related to DEI at Work , U.S. Equal Emp. Op portunity Comm’n (Mar. 19, 2025), https:// www.eeoc.gov/what-do-if-you-experience-dis crimination-related-dei-work. 51 Justice Department Establishes Civil Rights Fraud Initiative , Dept. of Justice (May 19, 2025), https://www.justice.gov/opa/pr/justice-depart ment-establishes-civil-rights-fraud-initiative. 52 See 31 U.S.C. § 3729; 28 CFR § 85.5. 55 Guidance for Recipients of Fed. Funding Regard ing Unlawful Discrimination , Mem. from Att’y Gen. Pam Bondi to Fed. Agencies (July 29, 2025), https://www.justice.gov/ag/media/1409486/dl. 53 31 U.S.C. § 3729. 54 18 U.S.C. § 287.

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FEATURE: EMPLOYMENT LAW

FOURTH AMENDMENT IMPLICATION IN OSHA WORKPLACE SAFETY INSPECTIONS BY ANNIE HARB AND JOHN ROGERS

W orkplace safety is a cornerstone of labor regulation in the United States. Created in 1971 during the Nixon administration, the Occupational Safety and Health Administration (“OSHA”) is tasked with enforcing workplace safety laws along with 22 federally approved state OSHA plans subject to federal oversight. OSHA’s broad regulatory powers pursu ant to 29 U.S.C 651-678 extends to general industry, construction, maritime, and agricultural sectors of employment affect ing virtually every workplace in America. Many employers and their general coun sel view OSHA inspections as events that require them to just open the door and grant unfettered access to their business. However, this is not the case. OSHA’s broad authority to conduct workplace inspections is not unlimited and must operate within the broader framework of constitutional protections. The Fourth Amendment of the United States Constitution, which guards against unreasonable searches and seizures, intersects with OSHA’s broad regulatory powers. Combined, they guar antee employers a constitutional right against unreasonable inspections, and in many cases, operate as a stopgap prevent ing OSHA from expanding the scope of an existing inspection. This dynamic has generated significant legal scrutiny and case law, requiring attorneys to navigate a nuanced and ever-evolving legal landscape when addressing OSHA admin istrative inspections. Here, we explore the legal framework governing OSHA inspec tions within the context of the Fourth

Amendment, key judicial decisions that have shaped this area of law, the procedures OSHA must follow to lawfully inspect a workplace, and practical implications for employers and their counsel. OSHA’S REGULATORY FRAMEWORK FOR WORK PLACE INSPECTIONS The Occupational Safety and Health Act of 1970 (the “OSH Act,” or the “Act”), codified in 29 U.S.C. §§ 651–678, was enacted with the intention of creating safe working con ditions for all employees. OSHA, operating as a division of the Department of Labor and empowered through the Act, has the authority to develop, promulgate, and enforce broad workplace safety regulations. Section 8(a) of the Act grants OSHA the right to enter and inspect workplaces at reasonable times, within reason able limits, and in a reasonable

manner. 1 The statute reads, in part: In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized... to enter without delay and at reasonable times any factory, plant, establish ment, construction site, or other area, workplace or environment where work is performed... and to inspect and investigate... any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee. 2

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warrant, which slightly differs from a tra ditional warrant, stating “[f]or the purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that “reasonable legislative or administrative standards for conducting an…inspection are satisfied with respect to a particular establishment.” This leaves the door slightly open for OSHA to obtain a warrant not only when probable cause for a violation exists, but also if such purpose fits within OSHA’s regulatory intent. 11 STANDARD AND PROCESS Following the decision in Marshall , OSHA is required to obtain a warrant when an employer refuses to consent to an inspec tion. Standards for issuing such warrants were further clarified in subsequent cases and administrative guidelines. As stated, an administrative warrant is less demanding than a criminal warrant. It can be issued based on a general program of inspections justified by reasonable legisla tive or administrative standards or a specific complaint from an employee or other cred ible source suggesting a violation. 12 An administrative warrant sought by OSHA must have the following three elements: (1) a description of the area to be inspected; (2) a statement of the purpose of the inspection; and (3) the signature of a neutral mag istrate or judge. 13 If an establishment denies consent for a limited inspection, the warrant request will usually focus only on the specific conditions or practices that led to the inspection. 14 A broader inspection warrant can only be requested when there is clear evidence that violations may exist in other parts of the workplace. 15 This evidence would stem from injury records, employee statements, or visible hazards. 16 OSHA inspectors typically request consent first and will apply for a warrant only when an employer denies consent. Employers that refuse entry without a warrant are within their rights under Marshall , but once a ADMINISTRATIVE WARRANTS: LEGAL

While this statutory language provides OSHA with broad inspection authority, it is not without limitation. Regulatory inspec tions, just like criminal investigations, implicate Fourth Amendment protections; employers, as well as their attorneys, can and should assert this right when dealing with government inspectors. FOURTH AMENDMENT BASICS The Fourth Amendment to the United States Constitution assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unrea sonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 3 The Fourth Amendment’s protections are rooted in the premise that “a man’s house is his castle,” established in response to Amer ican Colonials’ experiences with British “writs of assistance” – general court orders granting warrants for what often amounted to arbitrary searches and seizures. 4 Though initially applied in the criminal context,

Fourth Amendment protections were extended to administrative searches and inspections with the establishment and the growth of the administrative state, leading federal and state agencies to develop qua si-police powers. In the case of Camara v. Municipal Court , for example, the United States Supreme Court held that adminis trative inspections by government officials, such as health or housing inspectors, con stitute searches within the meaning of the Fourth Amendment and therefore generally require consent or a warrant. 5 MARSHALL V. BARLOW’S, INC. In Marshall v. Barlow’s, Inc. , the seminal case addressing Fourth Amendment pro tections within the context of an OSHA inspection, the Supreme Court addressed whether OSHA inspectors could conduct warrantless inspections of non-public work spaces. 6 The case arose when an OSHA inspector sought entry into an electrical and plumbing installation business with out a warrant. 7 The business owner refused entry and argued that the search violated his Fourth Amendment rights. 8 The Marshall Court ruled in favor of the employer, holding OSHA’s statutory authorization for warrantless inspections was unconstitutional when applied to pri vate areas of privately owned businesses. 9 The Court further held that commercial premises are protected by the Fourth Amendment, and the warrant require ment applies to OSHA inspections unless an exception applies ( e.g. , consent or exigent circumstances). 10 The Court empha sized that OSHA must obtain an admin istrative

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FEATURE: EMPLOYMENT LAW

warrant is obtained, further refusal may lead to contempt proceedings or enforce ment through federal district court. EXCEPTIONS TO THE WARRANT REQUIREMENT Although Marshall and subsequent cases established a general requirement for war rants, several exceptions apply. The first and most common exception is voluntary con sent. Employers may consent to an OSHA inspection without a warrant. Consent must be voluntary, not coerced, and provided by someone with actual or apparent authority to give this consent. 17 Once an employer gives consent, the scope of the inspection must remain within the bounds of such consent. Inspectors may not exceed the agreed-upon areas without further consent or a warrant. A principal restated in Marshall is if OSHA is lawfully present ( e.g. , with consent or in a public area), any violations in plain view may be inspected and cited. 18 This prin ciple allows OSHA to take action even if certain areas were not initially included in the scope of the inspection. Areas that are not private, such as open fields, exterior grounds, or public-facing areas, are not protected by the Fourth Amendment to the same degree. Inspections of these areas may not require a warrant. 19 Where there is a reasonable belief that a condition poses an imminent danger to employees, OSHA may conduct inspections without a warrant or consent under the emergency exception. KENTUCKY’S STATE OSHA PLAN AND CONSTITUTIONAL ISSUES Twenty-two states operate their own OSHA-approved state plan, which must be “at least as effective” as the federal pro gram. If an employer operates in a state that has its own OSHA-approved plan, such as Kentucky, the state agency conducting an inspection is bound by the Fourth Amend ment or its state constitutional equivalents. However, state-specific case law may vary on issues like administrative warrants or consent protocols. Kentucky courts have addressed Fourth Amendment issues as applied to OSHA

cases in several important decisions. In Yocom v. Burnette , the Kentucky Supreme Court held that both the Fourth Amend ment and Section 10 of the Kentucky Constitution require a search warrant or court order based on probable cause for unconsented inspections of business premises. That case also acknowledges that the standard to determine the prob able cause required for the issuance of a requested warrant or court order is dif ferent from the standard applied in other contexts. 20 With respect to probable cause, the focus is on the governmental interest which justifies the official intrusion. The controlling standard is reasonableness. “A decision to search private property must be justified by a reasonable governmen tal interest. ‘But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.’” 21 The Yocom Court concluded administrative entry with out consent upon portions of commercial premises not open to the public may only be compelled through prosecution of phys ical force within the context of the warrant procedure. 22 This position was later affirmed in Kentucky Labor Cabinet v. Graham , citing Marshall and confirming OSHA inspectors must obtain a warrant before conducting a search of an employer’s premises if employers do not provide consent. 23 Kentucky Courts have continued to empha size the issue of consent when evaluating Fourth Amendment applications to OSHA inspections. The most recent case address ing the issue was 2024’s Harland Clarke Corp. v. Kentucky Occupational Safety and Health Review Commission . 24 In that case, the Court of Appeals cited Thriftmart and stated: Regarding administrative searches and inspections generally, “[t]he Supreme Court has long recognized that such criminal searches are not the legal equivalent of administra tive inspections[.]” United States v. Thriftimart, Inc., 429 F.2d 1006, 1008 (9 th Cir. 1970). Indeed, “[i]t is clear . . . that the administrative search is to be treated differently than the criminal

search.” Id. at 1009. Therefore, “a warrantless inspectorial search of business premises is reasonable when entry is gained not by force or misrep resentation, but is, with knowledge of its purpose, afforded by manifestation of assent.” Id. at 1010. 25 What is clear is that despite the fact that Kentucky operates a state OSHA plan sepa rate from Federal OSHA, the requirement of consent to an onsite inspection, or to obtain a warrant within the bounds set out in those earlier cases, still exists. EMPLOYER RIGHTS AND BEST PRACTICES Employers and general counsel, especially in heavily regulated industries like con struction, manufacturing, and chemical processing, must be prepared for OSHA inspections and should understand their rights under the Fourth Amendment. First and foremost, employers should educate their agents and employees regarding what they should do when an OSHA inspector arrives, so they are prepared and do not make costly errors during the inspection process. If an OSHA inspector arrives at an employer’s establishment, a designated representative should immediately request credentials to verify the identity of the inspector. Then, they should ask whether the reason for the visit is a result of a complaint or because of a program-based inspection. If the employer chooses not to consent to the search, they should ask to see a warrant as soon as possible. If the employer chooses to consent to the inspection, or the inspec tor later obtains a warrant, the company should have management or a legal repre sentative accompany the inspector during the search to maintain the proper scope of the inspection. The individual accom panying the inspector should ensure that the inspectors do not inspect unauthorized areas. After the inspection, the company should review any citations issued, consult counsel to determine whether to contest citations, and maintain documentation and records of the inspection.

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