At the recent PLUS Conference in Chicago, Dan Reynolds, the editor in chief of Risk & Insurance, sat down with Japhet Boutin, senior vice president of technical claims with Zurich North America. In addition to serving on a PLUS conference subcommittee, Ms. Boutin was presenting at the conference on a panel focusing on employment practices liability. What follows is a transcript of her discussion with Mr. Reynolds, edited for length and clarity.

Risk & Insurance: Thanks for meeting with us, Japhet. What are your expectations for employment practices liability (EPL) litigation in the post-election landscape, and how might this impact businesses and individual plaintiffs?

Japhet Boutin: Glad to be here, Dan.  We see that there are certain recent Supreme Court cases — Muldrow vs. City of St. Louis is one — that have established a lower bar for plaintiffs’ counsel to prove employment discrimination. Decisions like Muldrow, in which the Supreme Court said that employees only need to show “some” harm (not “significant” harm) to prove discrimination, could lead to an uptick in retaliation claims.

Then there are cases such as Loper Bright Enterprises v. Raimondo, which take some of the authority from federal agencies, such as the Equal Employment Opportunity Commission (EEOC), in interpreting the law and deciding cases. The court’s decision in the Loper Bright case overturned what is known as “Chevron deference,” a legal principle that endured for nearly 40 years. The Chevron doctrine said courts should defer to agencies’ interpretation of an ambiguous statute, even if a court would have interpreted it differently. Reversing that stance, the Loper Bright decision said the courts must decide if an agency has acted within its statutory authority.

The Supreme Court’s decision in the Loper Bright case is a significant example of what could be a shift toward less regulation. As the new administration settles in, we expect to see more instances of this reduced regulatory approach, which may ultimately hinder organizations like the EEOC from pursuing certain claims. While this dynamic could be beneficial for businesses, it may not always be advantageous for individual plaintiffs.

R&I: What impact, if any, has the emergence of artificial intelligence had on employment practices liability (EPL) claims to date?

JB: I haven’t seen significant impact of artificial intelligence on EPL claims so far. While there’s a lot of talk about AI being here to stay and its potential to revolutionize various aspects of work life, the common refrain thus far seems to be that it’s great for certain smaller tasks but nowhere near where it needs to be for broader application.

There are many inherent biases in AI systems that need to be addressed before they can be used successfully in broader, reliable ways. AI relies on machine learning, which means it learns from historical data and actions taken by people. As a result, it can perpetuate biases present in that data.

For example, I was at a seminar where a leader in ethical AI shared  an example of a case where a description of a potential suspect in a crime was fed into an AI system, and that system incorrectly identified a black man as the likely perpetrator. Until we find a way to remove these inherent biases, I don’t think AI is ready for prime time in many areas, but that’s just my opinion based on what I’ve seen and heard so far.

R&I: What are the main types of employment practices liability (EPL) claims being filed currently?

JB: We’re still seeing a lot of the typical claims, such as those related to the Americans with Disabilities Act (ADA), race discrimination and failure to accommodate.

When COVID first started, we saw a surge of claims notices particularly around failure to accommodate remote work. However, these claims initially spiked but then subsided.

As offices began reopening and requiring people to return, we observed a resurgence of the regular claims that were prevalent before the pandemic. These include the core discrimination claims, such as those related to inappropriate behavior at office parties and gender discrimination. These types of claims had taken a lull during COVID because people weren’t physically present in offices and engaging in social activities.

R&I: With remote and hybrid work now in the mix, have there been any claims related to mandates requiring all employees to return to the office?

JB: While we saw some claims early in the COVID pandemic, we’re not seeing a significant number of them now. There is ongoing discussion in the industry and within corporations about the reasons for requiring employees to return to the office.

The workforce has shifted, becoming more employee-centric. Due to many employees leaving the workforce and new entrants in the market, there is a shortage of workers. As a result, some companies want employees to come into the office more than two or three days a week, but many employees are resistant and not doing so.

Many companies are not enforcing these policies because they need the staff. It’s a fight for talent, and finding skilled workers in this market is challenging. While some companies publicly state a requirement of five days a week in the office, some of their employees reveal that this is not necessarily being enforced.

The difficulty in finding talent and getting employees to come into the office is a shame because people forget the art of conversation and engagement. In commercial insurance, which is a relationship-driven business, nothing is more important than building and maintaining relationships.

R&I: What is your role with the Plus Conference?

JB: In addition to my work at Zurich North America, I am also involved with the PLUS organization. I served on the content committee that organized the 2024 conference in November in Chicago, contributing to the planning and development of the event.

I also co-chair the PLUS D&O symposium that takes place in New York March 4-5. In this capacity, I work alongside my fellow co-chairs to oversee and guide the symposium, ensuring its success and relevance to the industry.

R&I: What has your experience been like being part of PLUS and having a leadership role with the association?

JB: Being a part of this organization has been an amazing experience. The wealth of knowledge that the members of PLUS possess is truly impressive. It provides an opportunity to engage and learn about what’s happening outside of my own industry.

For instance, I recently attended a fiduciary liability panel through PLUS where I learned about the Pregnant Workers Fairness Act, which initially took effect in 2023, with a final regulation taking effect in June 2024. Although I haven’t seen anything related to it in my claims group, other companies have reported seeing its impact. It’s fascinating to hear about these developments.

What I love most about PLUS is watching it grow in terms of intentionally seeking and engaging diverse representation, not just in terms of race, gender and sexual orientation, but also in thought and leadership. The board comprises a wide range of individuals, and you have the opportunity to meet and engage with so many different people through various activities.

I learn something new every single day, not just about the industry, but also about talent, staffing and economics. I truly love this organization and consider it one of the best. It has been invaluable to me. &