"I am going to fight this nonsense to the end of the earth in the hope that it inspires other CEOs to do the same so we shut down this despicable behavior that is a large tax on society, employment, and the economy and contributes to workplace ...
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PLEASE, do not litigate your cases on social media

"I am going to fight this nonsense to the end of the earth in the hope that it inspires other CEOs to do the same so we shut down this despicable behavior that is a large tax on society, employment, and the economy and contributes to workplace discrimination rather than reducing it."

Those were the concluding words in a scribe Bill Ackman, a hedge fund CEO, posted on X in defense of a discrimination lawsuit facing his company.

His post, while deeply personal, is a masterclass in how NOT to handle employment litigation.

Let me be clear. CEOs absolutely have the right to defend their companies against what they believe are meritless claims. Some lawsuits are opportunistic. Some are not. That's what courts are for.

But the moment a CEO decides to litigate that dispute in the court of public opinion, the risk calculus changes—and not in the company's favor.

Start with control. Once you take your story public, you no longer own it. The narrative splinters. Media outlets cherry-pick details. Social media amplifies outrage. And plaintiff's counsel? They sit back and watch you do their work for them.

Because that's the second problem—you're creating evidence. Every assertion, every characterization, every "fact" you post is now part of the record. Opposing counsel will dissect it line by line, looking for inconsistencies, exaggerations, or admissions. What feels like a defense becomes a deposition exhibit and evidence of pretext.

Third, you're inflating the stakes. Most employment cases are business decisions dressed up as legal disputes. They resolve quietly because that's often the rational outcome. But once you go public, you've turned a dispute into a spectacle. Now settlement isn't just about dollars—it's about saving face.

Fourth, you're undercutting your own lawyers. Effective legal strategy requires discipline, precision, and timing. A CEO posting a blow-by-blow account on X is the opposite of all three. You're not helping your case; you're destabilizing it.

And then there's your workforce. Employees aren't reading your post as a principled stand. They're asking a simpler question: if something goes wrong for me, will my employer take it to the internet? That's not a culture-builder.

None of this means CEOs should roll over. They shouldn't. Defend the case. Take it to trial if necessary. Push back against meritless claims.

But do it in the right forum.

Because the court of public opinion has no rules of evidence, no burden of proof, and no off switch. And once you step into it, you may win the argument, and lose everything else.
      

WIRTW #794: the 'philanthropy' edition

On this week's episode of the Norah and Dad Show, we talked about what Delta Zeta has come to mean to her, and I couldn’t help but smile listening to her. Greek life was never my thing, but I'm genuinely glad it's hers. She’s found her people—and not just a social circle, but a group that aligns with who she is. That includes their focus on speech and hearing advocacy, which fits her empathy and curiosity (and maybe even career goals) to a tee. It's one thing to join an organization; it's another to find one that sharpens your perspective and pushes you to care more deeply about issues that matter. This one does both for her, and it shows.

Norah and I covered a range of other topics, including food poisoning, a preview of her upcoming trip to New York City, travel horror stories (including Times Square on New Year's Eve and a very questionable museum couch), and speed traps. You can listen via Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, your browser, and everywhere else you get your podcasts. 

(If you are inclined to make a donation to DZ's philanthropy, you can do so here.)

Here's what I read this week that you should read, too.

Born Here Means Citizen. Period. — via Authoritarian Alarm





Oracle Laid Off Thousands by Email—and That May Have Been the Right Call — via Improve Your HR by the Evil HR Lady, Suzanne Lucas

Can You Take a Joke? Fifteen Years Later, the Answer Is Still "Maybe" — via Dan Schwartz's Connecticut Employment Law Blog



Ohio Brewers Look Back to the Future — via Ohio Craft Brewers Association

Mental Health Is Now a Retention Problem. For Some Employers, It's Also a Legal One.

One in four employees have considered quitting because of their mental health.

Let that sink in.

Not compensation. Not commute. Not a bad boss. Mental health.

The latest NAMI-Ipsos Workplace Mental Health poll paints a pretty stark picture: employees are stressed, overwhelmed, and—critically—don't feel safe talking about it at work. Nearly half fear judgment. Even fewer trust HR or leadership with these conversations.

That's not just a culture problem. It's a retention problem. And, increasingly, a legal one.

What can employers actually do about it?

Start with the basics. The same NAMI-Ipsos survey found that more than 80% of employees want training on stress, burnout, and crisis response. Give it to them—not a one-off webinar no one remembers, but ongoing, practical training for both employees and managers.

Train managers to recognize warning signs—withdrawal, missed deadlines, sudden performance drops—and to respond appropriately. Not as therapists, but as informed leaders who know when to listen and when to escalate.

Make your resources visible and usable. An EAP buried in a handbook isn't a benefit. Regularly communicate what's available, how to access it, and normalize using it. If leadership never talks about these tools, employees assume they shouldn't use them.

Flexibility matters more than most employers realize. A significant share of the workforce is in what's sometimes called the "sandwich generation"—simultaneously caregiving for children and aging parents. For these employees, rigid schedules and unsustainable workloads aren't just inconvenient; they're breaking points. Thoughtful scheduling, remote options, and realistic workload expectations go a long way toward reducing burnout before it becomes a resignation.

And then there's culture—the piece that makes or breaks everything else. If employees believe speaking up will make them look weak or cost them opportunities, they'll stay silent until they quit. Leaders set the tone. When mental health is treated as legitimate and discussable, stigma starts to erode. When it isn't, all the EAP communications in the world won't matter.

Where does the ADA come into play?

Not every stressed employee has a disability. But some do.

When an employee's mental health condition rises to the level of a disability—and the employer knows or should know about it—the ADA's reasonable accommodation obligations are triggered. That doesn't require magic words. "I'm struggling with anxiety and need help managing my workload" can be enough to start the interactive process.

From there, the obligation is familiar: engage in good-faith dialogue and consider reasonable accommodations. That might include modified schedules, remote work, additional breaks, leave, or adjusted job duties.

Here's where many employers go wrong: they treat what looks like a performance problem as only a performance problem. An employee starts missing deadlines, disengages, gets a PIP—and no one stops to ask whether a medical condition might be in play. That's not just a missed opportunity. Depending on the circumstances, it can be a legal liability.

Ignoring the issue, or treating it purely as a conduct matter without exploring whether something deeper is going on, isn't a neutral choice. Once an employer knows or should know that a mental health condition may be affecting an employee's work, the obligation to engage has begun.

The bottom line

The mental health crisis in the workplace isn't going away. Employers who take it seriously—with real training, visible resources, flexible structures, and cultures where people feel safe enough to speak up—will have a meaningful advantage in retaining the people they've worked hard to hire.

Because if you don't create a workplace where people can cope, they'll find one where they can.

Employers can no longer count on private arbitration when sexual harassment is on the docket

Employers love arbitration agreements. They keep disputes private and out of court.

Unless, that is, sexual harassment is in the case.

An Ohio appellate court just made that crystal clear in Hansbrough v. Marshall Dennehey.

The employer did what employers do. It pointed to a signed arbitration agreement and moved to compel arbitration of the employee's claims.

That used to be a strong move. Then Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. That changed everything.

The question in Hansbrough wasn't whether the plaintiff would ultimately prove harassment. It was much earlier in the case: did the complaint plausibly allege sexual harassment occurring after March 3, 2022 (the EFAA's effective date)? The court said yes.

And under Ohio's notice-pleading standard, that was enough. Once the plaintiff cleared that low bar, the EFAA applied. And once the EFAA applied, the arbitration agreement could not be enforced—not just for the harassment claim, but for the entire case.

Read that again. Not just the harassment count. The entire case.

That's the real takeaway. This wasn't a merits decision. It was a procedural one. But procedural doesn't mean unimportant. It means the fight over where the case gets decided—court versus arbitration—may now turn on how a complaint is drafted.

The court didn't need to reach a harder question—whether post-EFAA retaliation tied to pre-EFAA harassment would independently trigger the statute. The plaintiff's allegations of post-EFAA harassment made that unnecessary.

But don't miss what this means in practice. Sexual harassment claims rarely travel alone. They come bundled with retaliation, discrimination, and other statutory claims. And under the EFAA, one viable harassment allegation may keep that entire bundle in court.

Arbitration agreements no longer operate as universal shields.

If your risk analysis assumes you can push most employment disputes behind closed doors, you need to revisit that assumption. In fact, one well-pleaded harassment claim may be all it takes to blow up arbitration entirely.

The Supreme Court lowered the bar. Employers should take notice.

Last year, in Muldrow v. City of St. Louis, SCOTUS rewrote what counts as an "adverse employment action" under Title VII. The old rule required something "materially" adverse—real harm. That's gone. Now, if an employee is left even a little worse off in the terms or conditions of employment, that's enough.

That's a big deal. It opens the door to challenges over everyday workplace decisions that courts used to dismiss as trivial.

But here's the nuance: the bar is lower—not nonexistent.

Enter Walsh v. HNTB Corp.

Walsh, a long-time IT employee, was placed on a performance improvement plan. She completed it. No demotion. No pay cut. She later resigned and claimed age discrimination, arguing that the PIP itself was an adverse action.

Under pre-Muldrow law, that claim was dead on arrival. Post-Muldrow? It at least gets a serious look.

The First Circuit acknowledged the new standard: any change that leaves an employee worse off in their job conditions can qualify. And importantly, it made clear that some PIPs will meet that test.

But Walsh still lost. Her PIP didn't actually change anything that mattered. No new duties. No reduced opportunities. No impact on pay, title, or advancement. The court called it what it was—"documented counseling."

That's the lesson. A PIP is no longer automatically safe. But it's not automatically actionable either. It depends on what it does.

A PIP can now be an adverse action if it:
📝 Adds worse or more burdensome responsibilities
📝 Limits promotion or transfer opportunities
📝 Impacts compensation or advancement
📝 Meaningfully alters how the job is performed

Walsh's PIP did none of these. So, the employer won.

But don't get too comfortable. Here's what employers should be doing right now:

First, draft PIPs like they'll be Exhibit A. Because they will be. Tie them to objective performance issues and avoid vague, subjective critiques.

Second, be careful about layering on consequences. The more a PIP changes how someone works—or what opportunities they have—the more it starts to look like an adverse action.

Third, stay consistent. Disparate treatment claims just got easier to plead and harder to dismiss early.

Fourth, train your managers. "It's just a PIP" is no longer a safe assumption.

Muldrow didn't take the bar away. But it dropped it. And Walsh shows how low employers now have to go to get under it.

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