Hunton Retail Law Resource

The results are in: attorneys are filing more employment law cases in court.  Indeed, year-end reporting from legal databases like LexMachina confirm that the pace of filing new employment discrimination cases reached its highest level in 2025, surpassing 20,000 new filings nationwide.  Though overtime and minimum wage lawsuits under the Fair Labor Standards Act (FLSA) have continued to decline since 2015, discrimination cases under laws like Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act are on the rise.

Employment Discrimination Lawsuits Lead the Charge

The rise in discrimination lawsuits is not merely a rebound from pandemic-era lows.  Rather, the number of employment law cases filed has surpassed pre-pandemic averages.  Various theories may explain the uptick.  These include, 1) recent Supreme Court clarification of employment law standards, such as when job transfers constitute adverse employment actions, and elimination of the need for majority group employees to show “background circumstances” to support a discrimination claim; 2) fewer EEOC enforcement actions and more right-to-sue notices; and 3) conflicts between employer return-to-work policies and employees who seek reasonable accommodations from those policies.

For retailers, these trends deserve attention—and renewed attention to policies and practices.  The retail workplace is generally on the front lines of employment law developments.  And when these litigation trends mix with the increasing use of artificial intelligence (AI tools), new state laws, and shifting EEOC priorities, retailers should stay abreast of the legal landscape to avoid costly compliance mistakes and expensive litigation.  The size of the workforces of many national retailers also makes them attractive targets for class and collective actions as part of this trend. 

Recommended Actions for Retail Businesses

As retailers enter 2026 and beyond, they should focus on several key areas to mitigate legal risks.  First, if implementing AI tools, retailers should only do so after careful consultation with legal counsel.  New state laws mandate a host of transparency, notice, and auditing requirements.  Running afoul of these laws will draw scrutiny from both state regulators and private litigants.  Second, retailers should review any diversity, equity, and inclusion policies to ensure that such policies comply with the latest policy statements and priorities at the EEOC.  And finally, retailers need to stay abreast of state laws in specific states in which they operate, particularly with regard to wage payment issues.  One reason why the number of federal FLSA cases filed has declined in recent years is because many plaintiff-side attorneys are simply suing under more plaintiff-friendly state laws (e.g., California’s Private Attorneys General Act).  And as new state laws come on the books (e.g., pay transparency laws), retailers should review their policies and operations to adjust as the landscape shifts.