The Ames Decision

As many employment practitioners know, the Court’s recent decision in Ames v. Ohio Dep’t of Youth Servs., 606 U.S. 303 (2025), issued on June 5, discussed how to apply the “McDonnell Douglas burden-shifting framework.” This framework arose from an appeal of a bench trial to the US Supreme Court in the 1970s, and has since been applied to essentially all “indirect evidence” employment claims — that is, claims where the employee suspects that discrimination occurred, but the employer did not make any admissible statements that openly admit to discriminating against that employee. In such cases, McDonnell Douglas has provided an analytical framework to evaluate whether a plaintiff can prove, through circumstantial evidence, that discrimination occurred.

Of course, most employers are savvy enough to avoid admitting that they are illegally discriminating against employees, so circumstantial-evidence cases are the predominant style of employment discrimination claims. As such, McDonnell Douglas is “the presumptive means of resolving Title VII cases at summary judgment.” Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 952 (11th Cir. 2023) (Newsom, J., concurring).

In Ames, the Court was reviewing McDonnell Douglas because certain courts (including the Sixth Circuit) have been adjusting the McDonnell Douglas framework when the plaintiff is a member of a “majority” group (e.g., race discrimination claims brought by white employees, sex discrimination claims brought by men, etc.). This majority-group McDonnell Douglas framework steepened the plaintiff ’s burden in these so-called “reverse discrimination” cases. Ames rejected this alternative McDonnell Douglas framework and held that all discrimination claims must be evaluated under a uniform standard. That decision, written by Justice Jackson, was unanimous and its outcome was not surprising.

Justice Thomas Uses Ames to Attack McDonnell Douglas

Justice Thomas, however, authored a concurring opinion that criticized a more fundamental facet of the lower court’s decision: he wrote that McDonnell Douglas should not be used at all. Instead, Justice Thomas, joined by Justice Gorsuch, wrote that McDonnell Douglas “has no basis in the text of Title VII” and is a “judge made evidentiary tool” “made out of whole cloth.” As a result, Justice Thomas declared that McDonnell Douglas “is incompatible with the summary-judgment standard.”

As a “conservative,” Justice Thomas (who was once the Chairman of the E.E.O.C.) may not be viewed as an ally by plaintiff ’s lawyers, so his advocacy for discarding McDonnell Douglas may feel like a trap. He is noticeably imprecise about what framework, if any, he would use in place of McDonnell Douglas. But he is also unequivocal in declaring that McDonnell Douglas requires “a plaintiff to prove too much at summary judgment.” More specifically, Justice Thomas criticizes how McDonnell Douglas forces plaintiffs through a judicially-crafted three-step process, with the first step requiring its own, often-onerous subparts, and none of which ask the basic question posed by Rule 56: is there evidence in the record from which a juror could conclude that the employer treated the plaintiff differently on the basis of a protected characteristic? Justice Thomas’s concurrence is quite similar to the concurring opinion in Tynes, written by Judge Newsom of the Eleventh Circuit two years ago, which criticizes McDonnell Douglas as “awfully made up,” with “no textual warrant,” enticing “reviewing courts to focus on non-core issues.”

Criticisms of McDonnell Douglas

To imagine how McDonnell Douglas leads courts astray, consider a typical wrongful termination age discrimination case. There is some debate about what exactly is required at the initial McDonnell Douglas stage in such cases. This confusion, standing alone, exposes how troublesome the framework is. But putting that debate aside, most formulations of the framework require the plaintiff to show, among other things, that he was “replaced by someone substantially younger” or that he was “treated less favorably than similarly-situated comparators.” These requirements are not in the text of the ADEA; they are judicially made-up.

It is easy to see how such a framework could improperly disrupt claims brought by older employees who, for example, occupy unique roles in organizations and thus have no readily identifiable “similarly-situated comparators.” If such an employee is fired and the employer does not directly “replace” him upon termination, the employer will then surely argue that the employee cannot satisfy the first step of the McDonnell Douglas framework. In that instance, summary judgment could be granted, even if there is copious other evidence that the employer was motivated by age-related bias.

Because it is a tool for evaluating “circumstantial” cases, McDonnell Douglas presents another unique problem: as Justice Thomas writes, “it requires courts to draw and maintain an artificial distinction between direct and circumstantial evidence.” In other words, before applying McDonnell Douglas, courts must engage in the messy business of determining whether specific pieces of evidence qualify as “direct” or “circumstantial” evidence. This direct-indirect dichotomy is not legally significant in other areas of the law and makes no sense: “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself — or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence. Evidence is evidence.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). Courts should not be conducting separate analyses of evidence depending on whether it qualifies as “direct” or “indirect” — if there is any evidence of unlawful discrimination, summary judgment should not be granted.

Why Discarding McDonnell Douglas Is Important

“Over-granting” of summary judgment in employment cases is not a minor issue. Starting in 2009, and excluding all settlements and procedural resolutions (voluntary dismissals, consolidations, and transfers), approximately 70% (68.97%) of employment cases in the Northern District of Ohio resulted in summary judgment grants for the employer. The grant rate is 69.93% in the Southern District, almost identical. This high rate of summary dismissal is concerning, given that courts are not asking the litigants if there is an issue of fact as to whether discrimination or unlawful retaliation occurred, as required by Rule 56. Instead, courts are asking plaintiffs to run a gauntlet of judge-made elements that have no textual support in the relevant statutes.

As a result, some federal circuits have already adopted an alternative to McDonnell Douglas, sometimes called the “convincing mosaic” standard. Despite “its misleadingly florid label,” the “convincing mosaic” rule is “basically just Rule 56 in operation.” Tynes, 88 F.4th at 951. In assessing a “convincing mosaic,” courts simply evaluate direct and indirect evidence as a whole to decide whether a reasonable factfinder could conclude that a protected characteristic motivated an illegal decision by the employer. See, Ortiz, 834 F.3d 760. Judge Newsom acknowledges that courts are “over-granting” summary judgment, writing that “ditching [McDonnell Douglas] in favor of something that looks more like the convincing-mosaic standard would lead to more trials.” But while this may impose more burden on our court system, litigants and courts are not allowed to “jerry-rig” doctrines to avoid “time- and labor-intensive” claims that are legally viable. Tynes, 88 F.4th at 956.

Of course, it bears noting that, earlier this year, the US Supreme Court denied a petition for certiorari that sought reversal of McDonnell Douglas in a religious discrimination case. Hittle v. City of Stockton, 145 S.Ct. 759 (2025). Justices Thomas and Gorsuch dissented from that denial, leaving seven justices who declined to hear the issue. But while Justice Kavanaugh agreed to deny cert in that instance, it is noteworthy that, as a D.C. Circuit judge, he described McDonnell Douglas as a “largely unnecessary sideshow” “spawning enormous confusion and wasting litigant and judicial resources.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Thus, if the right case presents itself, the Court appears to already be three-fourths of the way towards accepting a petition for certiorari to evaluate whether McDonnell Douglas should be used at all. For that reason, lawyers and courts may want to heed Justice Thomas’s concurrence, which warned the employment legal community that the McDonnell Douglas framework was “underinclusive” of otherwise viable employment discrimination claims. Hittle, 145 S.Ct. at 762.

For more information, or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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*This article was originally authored for publication in the November/December 2025 Edition of the Cleveland Metropolitan Bar Journal. To view this article on the Cleveland Metropolitan Bar Association website, follow this link and visit Page 35.

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Marijuana Laws & State-Level Impacts

As readers may recall, we previously discussed how Ohio’s allowance of recreational marijuana use in 2023 might complicate how our state courts handle claims of disability discrimination under state law.  The new order from the Executive Branch, however, found here, has larger national implications due to its interaction with the Americans with Disabilities Act (ADA), a federal law that prohibits discrimination against individuals with disabilities. These changes would thus apply not just in Ohio, but throughout the United States. 

Drug Use Under the Americans with Disabilities Act

Under the federal Americans with Disabilities Act, employers are not allowed to discriminate on the basis of disability against a “qualified individual.”  A “qualified individual” is, under that same law, defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.”  There is a specific section of the ADA, however, that specifies that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the [employer] acts on the basis of such use.”  In other words, regardless of an employee’s disability status, if the employee is using illegal drugs, the employer is allowed to fire the employee for such use, even if the illegal drug use is somehow associated with the employee’s disability. 

Marijuana’s Current Status

Critically, the Americans with Disabilities Act defines “illegal use of drugs” as the use of drugs that is unlawful under the Controlled Substances Act.  So, for example, even if an employee has a medical condition that generates chronic, severe pain, that employee cannot claim protection under the ADA for using heroin, because heroin is a “Schedule I” drug under the CSA.  A Schedule I drug is considered to have a “high potential for abuse” and lacks “currently accepted medical use in treatment.” Although marijuana is quite different from heroin, both substances are classified the same under the CSA. For that reason, courts have long held that employees cannot claim protection under the ADA for marijuana use, even if the marijuana use is under the supervision of a physician and lawful under the employee’s state law.

What Schedule III Classification Could Change

Meanwhile, “Schedule III” drugs are substances that have a lower potential for abuse than the drugs in Schedules I and II and that have currently accepted medical uses in treatment. Therefore, the CSA recognizes that Schedule III drugs, while subject to regulation, are not per se illegal. Under such a regime, employees would be able to argue that their marijuana use is legal under state law, subject to a physician’s supervision, and permitted under the CSA, and therefore deserving of protection under the ADA.

The takeaway from all of this? If marijuana is rescheduled under the Controlled Substance Act, employers will need to revisit their workplace drug policies, particularly those addressing positive marijuana test results. Such a change could dramatically expand employees’ ability to seek medical exemptions under Drug Free Workplace policies. Employers with questions or concerns as the administration moves toward rescheduling should consult counsel to discuss potential impacts and next steps.

For more information or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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“Free Speech” Rights

Many of these discussions have understandably focused on political or social issues like “cancel culture” or “free speech” rights. From a legal perspective, however, these matters are mostly irrelevant because First Amendment “free speech” rights do not apply between private-sector employers and employees. Because the Constitution’s Bill of Rights restricts the government, not private employers, most employees’ First Amendment rights are not implicated by a termination or suspension. (Of course, if a government actor – like the Federal Communications Commission (FCC) – influences the decision, then constitutional rights may be implicated.)

But for a public-sector employee, the analysis is completely different because the employer is the government.  Therefore, the constitutional prohibition on punishing a person for speech applies.  Public sector employees can sue their employer for “First Amendment Retaliation” if they can show that (1) they were engaged in constitutionally protected speech; (2) they were subjected to an adverse employment action “that would deter a person of ordinary firmness from continuing to engage in that speech or conduct;” and (3) the protected speech was a substantial or motivating factor for the adverse employment action.  Whether an employee is engaged in “constitutionally protected speech” is determined by a court, evaluating whether the employee spoke as a citizen on a matter of “public concern” (meaning anything of political, social, or other concern to the community) and balancing the interests of the employee and the employer.

Protected Employee Speech

Meanwhile, all employers, private and public alike, are prohibited from retaliating against employees if those employees’ “speech” falls into one or more of the many categories of “protected activity” or “whistleblowing.”  Employment civil rights laws, for example, make it illegal to fire an employee for expressing concerns about illegal (like not paying overtime when it is due) or discriminatory (like sexual harassment) behavior in the workplace.  So while a private sector employer might be allowed to fire an employee for claiming that Charlie Kirk’s positions were “racist,” that same employer would be prohibited from firing an employee who complains that “Charlie Kirk has inspired people to be racist in this office.” 

Meanwhile, many laws encourage employees to report wrongdoing (itself a form of “speech”) and also protect employees from retaliation for doing so. The Defend Trade Secrets Act, for example, is a federal law establishing that an employee can disclose information to a government official or in a lawsuit – even if that information is a potential “trade secret” of the employer – provided the employee meets certain requirements for disclosure. 18 U.S.C. § 1833(b). Generally speaking, those requirements require the employee to take precautions against unnecessarily disclosing sensitive information beyond reporting to the government. To be clear, those requirements do not include recording employees on camcorders as the pitch of their voices continues to escalate:

Ohio also has its own whistleblower protection, which I’ve previously written about here.

Whether employees can be fired for something they said is a complicated issue that depends on the nature of the employment and the content of what was said. If you have a question about such rights, an experienced employment attorney would be an invaluable resource to help you understand your options and protect your interests.

For more information or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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Sixth Circuit Ames Decision: Raising the Bar for Reverse Discrimination Claims

Marlean Ames, a heterosexual woman, claimed that her employer, the Ohio Department of Youth Services, discriminated against her based on her sexual orientation. In her Title VII lawsuit, she alleged that she was denied a promotion because her employer promoted a lesbian woman instead. Ames also claimed that she was then demoted from her position and replaced by a gay man.

Title VII claims, like those brought by Ames, are analyzed under the “McDonnell Douglas burden shifting framework,” which requires the employee to prove certain elements to show that an employer intentionally discriminated. The Sixth Circuit, which had jurisdiction over Ames’ case, had long imposed a unique, additional requirement for such “reverse discrimination claims” – claims in which the plaintiff is a member of a majority group. More specifically, plaintiffs in these cases were required to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” – for example, evidence that the person who made the employment decision is a member of the relevant minority group, or statistical evidence showing a pattern of discrimination by the employer against employees in the majority group.

Ames could not prove these “background circumstances.”  The managers involved in terminating Ames were both heterosexual, and Ames’ statistical evidence (that her own demotion and non-promotion showed a pattern of discrimination against heterosexuals) was rejected because, under the applicable law, statistical evidence was required to be based on situations outside of the plaintiff’s own experience. Thus, the Sixth Circuit reemphasized that majority-plaintiffs were held to a heightened standard.

U.S. Supreme Court Strikes Down the “Background Circumstances” Rule

Ames is the latest example of a notable trend at the U.S. Supreme Court (and in other political arenas) exhibiting hostility to color conscious policies. Conservatives, especially the Trump Administration, have fiercely advocated for the dismantling of DEI in the workplace. By holding that Title VII applies to all individuals regardless of their membership in a particular group, the Supreme Court continues its shift towards favoring color blind approaches.

Just like the 2023 decision of Students for Fair Admissions, where the court invalidated color-conscious college admission policies, Ames implies similar rhetoric towards workplace diversity policies. Indeed, Justice Thomas, in his concurring opinion, reflects the growing animosity towards DEI policies, stating, “American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans.” Now, through emphasizing that Title VII applies to any individual regardless of their identity, the Supreme Court continues to reshape its discrimination precedent.

Federal Discrimination Law Remains Unchanged

So, what does this mean for employers? The message remains the same: do not discriminate against your employees. Ames does not change the foundational principles at the heart of civil rights laws such as Title VII, ADEA, and ADA. These laws are still in place and unchanged. Ames only makes it easier for plaintiffs alleging reverse discrimination to pursue their claims without being preliminarily thrown out of court by holding them to the same standard as traditional discrimination claims. As to workplace DEI policies, employers are advised to stay informed of the changing landscape surrounding these policies to ensure they are aligned with emerging laws and regulations.

Next Steps

If you have questions about your workplace policies, especially amidst the murky landscape surrounding the validity of DEI, or are concerned about what this ruling means for your business, the attorneys in McCarthy Lebit’s Employment practice group are available to assist you.

To seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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McCarthy Lebit would like to thank law clerk Bridget G. McCourt for her work in assisting with the preparation of this legal blog post for The More Report.

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Defining “Cause” in Employment Agreements

The most basic definitions of “cause” usually describe the most egregious employee conduct – like convictions of felonies or other crimes related to the job, conflicts of interest, “willful violations” of laws or regulations, or things like “gross negligence,” fraud, or acts of embezzlement or dishonesty. In other words, as long as an employee generally behaves, he or she will be fine, and can feel pretty safe that the employer cannot terminate employment for frivolous reasons, like this:

Many employment agreements, however, define “cause” in a much broader way. For example, definitions of “cause” that incorporate less rigid principles like “neglect of a duty” or “insubordination” mean that an employer can claim that “cause” exists if an employee simply did not perform a task (or did not perform it as quickly as the employer claims it wanted). Given how many responsibilities most employees juggle, this means that the “cause” definition is employer-friendly, particularly if the contract provides that a determination of “cause” is solely at the employer’s discretion.

Similarly, some employment agreements state that any violation of the employer’s “policy” constitutes “cause.”  That may sound reasonable enough, until the employee reads the employer’s full policy manual and realizes that “cause” exists if any one of those policies is violated a single time. If “cause” definitions are written this broadly, employees are functionally reduced to “at will” status and can be fired for nearly any reason. In such instances, the contract provides barely any security for the employee (In fact, some employers’ “contracts” that say the employee’s employment can be terminated at will, defeating entirely one of the major reasons an employee would want a contract in the first place.)

Negotiating Fair Definitions of “Cause” in Your Employment Agreement

Negotiating the definition of “cause” is therefore an important step in onboarding with a new employer. Alternatively (or perhaps simultaneously), an employee can demand that some, or all, of the “cause” definitions have a “notice-and-cure” protection – basically, a contractual requirement that the employer give the employee “notice” of potential cause and a defined period of time to “cure” (fix) the cause before it leads to termination.

Addressing Employment Resignation & Severance Terms

During such a negotiation, the employee should also determine whether, and how, the contract addresses resignation.  Some contracts, for example, state that an employee forfeits any severance benefits in the event of a voluntary resignation. In that case, the employee should demand a clause that permits resignation with “good reason.”  For example, if the employer moves the employee’s office location to a faraway place (thereby requiring travel that was not foreseen when the employee was hired), or substantially reduces the employee’s stature, authority, or responsibilities in the organization, the employee will want the ability to resign without also being penalized.

Please note that this does not address other definitions of “cause” – for example, a state may have its own definition of what constitutes “cause” to determine whether a former employee is entitled to unemployment compensation.  See, for example.

For more information or to seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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Turns out I should have waited a week to post the blog. If I had been patient, the new administration would have clarified whether its open hostility to DEI on the campaign trail would translate to policy positions once in power.

First, on January 20, 2025, the Trump Administration issued an Executive Order called “Ending Radical and Wasteful Government DEI Programs and Preferencing.”  This EO essentially eliminates any DEI policy, program, or position within any governmental agency or department.  Interestingly, it also tells agencies to assemble lists of any contractors who have provided DEI training to governmental agencies or departments in the past – presumably to ensure that such contractors are not extended any more work.  (Indeed, a week later, the Trump Administration’s Office of Management and Budget issued a separate order that declared a stoppage to all financial assistance programs until government agencies could ensure that federal funds were not being used in contravention of recently issued Executive Orders, including those related to DEI.)

Second, on January 21, 2025, President Trump issued another order, this one called “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”  In this EO, the new administration openly targets “influential institutions of American society” that have “adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise” of DEI.  The order rescinds a different, sixty-year-old EO from the Johnson Administration that implements civil rights protections for federal contractors.  It requires that all contracts with federal contractors include assurances that such contractors do not adopt DEI policies (meaning that a contractor following DEI principles would thereafter be engaged in government fraud).  And it broadly instructs agency heads, together with the Attorney General, to identify private sector areas within those agencies’ jurisdiction that may serve as targets for governmental litigation against DEI.

Of course, you do not have to read these orders to discern the new administration’s stance on DEI.  After a commercial plane tragically collided with a military helicopter on January 29, 2025, President Trump almost immediately attributed the disaster to “DEI” and said that such attribution needed no further evidence – it was a matter of “common sense.”

As a result, companies that have historically merely paid lip service to principles of diversity, equity, and inclusion will consider stopping altogether even this cosmetic support.  And private sector entities that sincerely adopt DEI principles will need to closely tailor their approach and strategy, given the administration’s directive to put such issues in the crosshairs.  Efforts at diversity, inclusion, and equity in the workplace should be thoughtful and with a close eye toward legal compliance – in other words, not ham-fisted, like this:

All that said, nothing about these executive orders changes the fundamental civil rights laws that have been enshrined by Congress for decades.  Title VII of the Civil Rights Act (prohibiting discrimination on the basis of race, sex, religion, color, and ethnicity), the ADEA (age), and the ADA (disability) are all still in place.  These laws typically have state-law counterparts, as well, which similarly make it illegal to discriminate in the workplace on such protected characteristics.  So, it is very much still illegal to discriminate based on these protected classifications.  Indeed, the current Executive Branch position is that “illegal DEI policies” – which perhaps just means any DEI policies? – themselves violate these federal civil rights laws and “undermine national unity.” 

It certainly is the prerogative of private entities to follow suit of the Federal Government to eliminate DEI initiatives altogether, or disregard modern notions of DEI.  However, if they find that employee ranks, meetings, conferences, leadership groups, or leadership positions are comprised entirely of only specific demographics, they should also not be surprised to find themselves wrestling with more traditional legal challenges related to race- and sex-based bias against traditionally underrepresented groups, as the laws protecting those groups still very much remain in place.

To seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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This decision from the Court, and the language used by it, stands in stark contrast to many employer initiatives promoting diversity, equity, and inclusion.  Of course, there’s been no pronouncement that “DEI,” as a general concept, is unlawful, and employers are wise – for many reasons – to continue policies that promote inclusiveness and equity in the workplace.  In some instances, however, DEI initiatives include committees, groups, scholarships, internships, and promotional opportunities designed to advance the interests of specific demographics that have historically been marginalized (e.g., women, employees of color, LGBT employees, etc.).  As one might expect, those initiatives are often comprised exclusively of members of those demographics, either because the particular initiative excludes anyone else or because, practically speaking, members of the affected demographic are the only ones interested in participating.  In other words, usually a “women’s committee” is comprised exclusively of women.

More recently, we’ve had a national election, and many of the commentators and influencers involved in the incoming administration are openly hostile to “DEI” policies.  Because of the Students for Fair Admissions decision and changes in federal policy, many employers are starting to adopt a more measured approach to DEI programs that are tied, either directly or tangentially, to job benefits.  For example, scholarships and internships previously limited to certain classifications of applicants are being revisited, with limitations being lifted on who can apply or participate.  After all, if a program (e.g., scholarship, networking group membership, etc.) is “zero-sum” where a “benefit provided to some applicants” would “necessarily advantage” one over another, it is worth considering whether that program really complies with anti-discrimination law.

But many DEI initiatives, and their underlying purposes, can remain.  Even the US Supreme Court wrote (when discussing college admissions) that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute.”  So, it is still legal to have a “women’s committee,” for example, to address needs unique to women in the workplace.  But if opportunities for career advancement are being discussed, considered, or distributed within that committee, it should not be limited to only women (despite its name).

All that being said, it is very, very important to note that, if you are a man, and you now want to join the “women’s committee,” please do not make all of us regret it and generate even bigger HR problems by doing stuff like this:

To seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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Sometimes it is easy to determine who is the “supervisor,” and sometimes it’s not. For example, who is higher in the organizational chart – the “Assistant Regional Manager” or the “Regional Director in Charge of Sales”?

For approximately the last ten years, the law has been that a person is a “supervisor” if he or she is “empowered by the employer to take tangible employment actions against the victim.” Therefore, it technically doesn’t matter what a person’s job title is, though it can often give us a clue. Instead, did the person hire you without running it by anyone else? If so, he or she is likely a “supervisor.” Can that person fire you? Then he or she is a supervisor. Anyone who has the ability to hire, promote, demote, or fire you is a supervisor – and anyone who can’t do those things is not.

Keep in mind one additional layer of complexity. If, as part of the harassment, your harassing supervisor actually took a “tangible employment action” against you – like demoting you, not promoting you for an open position, or firing you – then your employer is legally responsible for the harassment and will not have much of a defense. But many times, harassing supervisors don’t go so far as to fire their victims but are simply content to subject them to regular workplace harassment, knowing that the victims cannot do much about it lest they put their jobs at risk. In this way, it is only the specter of a harassing supervisor’s ability to fire you that looms in the background. In those cases, where no “tangible employment action” has been taken against you by the supervisor, your employer is still responsible but can avoid liability by proving that (1) you failed to take advantage of “corrective opportunities” (for example, following the handbook’s policy on harassment reporting) and (2) the employer took reasonable steps to stop the harassment.

Taken together, a victim of workplace harassment often needs to speak up, as that is the surefire way to avoid any debate about whether the victim “failed to take advantage of corrective opportunities.” Victims are naturally reluctant to speak up for many understandable reasons, but if there’s doubt about the right procedure to protect your job, it is time to talk to a lawyer.

To seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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This creates an awkward situation for employees with health conditions. One potential (but terrible) fix to this problem might be inventing and reporting fake employee health conditions to disrupt an employer’s evaluation.  When they did that here, it just created more problems:

As you can likely guess, just inventing fake conditions won’t address the issue. While health data exchanged between employer and insurer is often “anonymized” (the employee’s name is not explicitly linked to the condition), most workplaces are small enough that management is able to tell which employees are linked to which real conditions. Thus, if your employer has a self-insured or partially self-insured plan, it likely knows your medical conditions – and how much they cost.

Fortunately, the law provides protection for employees so that they don’t have to resort to making up fake conditions like “government-created killer nano-robot infection” or “Count Choculitis.”  The Employee Retirement Income Security Act (“ERISA”) forbids employers from interfering with an employee’s access to a health plan – including “interference” by terminating the person’s employment. Importantly, an employer can be sued under ERISA if an employee’s health costs were merely a “motivating factor” in the decision to terminate employment. This means an employer can have multiple reasons for firing an employee, but if the employee’s health costs are but one reason, then the termination is illegal. As a result, employees should be wary of an employer expressing concerns about rising health costs, or of the loss of a job close in time to an event that could lead to increased costs to the health plan. 

ERISA also forbids an employer from retaliating against an employee for insisting on remaining on a health plan. So, if an employee enrolls in coverage, becomes ill, then refuses an employer’s request to locate alternate coverage, the employer cannot fire the employee to either limit its costs or send a signal to other employees (at least not without violating ERISA!).

While more specific than ERISA, it also bears mentioning that Medicare laws have specific provisions that limit employers in trying to “force” their Medicare-eligible employees off a private health plan.

Lastly, whenever an employment situation is complicated by health, remember there are other laws that likely apply – namely the Americans with Disabilities Act and Family and Medical Leave Act. So, even if a disabled employee’s health costs are not relevant, employers should be sure of compliance with the ADA and FMLA (as well as counterpart state laws) to avoid mismanaging tricky, health-related workplace concerns.

To seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.

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Proper Execution of a Deed

The proper execution of a deed is an important first step because if not done correctly, the deed is unlikely to be valid and effective.

There are several components of a properly executed deed. First, the deed must identify the person giving the property (the grantor) and the person receiving the property (the grantee). Specifically, the grantee’s name and current address should be included on the deed.  The person responsible for preparing the deed must also include their name in legible print, typewritten, stamped, or signed within the deed. Second, the deed must include a detailed description of the property that is being conveyed. This description should include the land’s legal description, address, or other relevant identifiers. An improper legal description can create confusion over the clear title to land and could potentially result in the grantee obtaining less (or different) land than was bargained for.

In Ohio, deeds also include a property’s street address and tax parcel ID number directly beneath the legal description.  A grantee should make sure this address is correct because it will be the address that the county uses to send tax notices and other important correspondence. Third, the deed must include a granting clause that explicitly states the grantor’s intent to transfer ownership. For example, “the grantor grants the property to the grantee.” Words like “assign”, “transfer”, “convey”, or “give” may also be used – but the grantor should clearly describe how the property is being conveyed and how much of the property is being conveyed. Finally, the deed must include an “execution block”.  This block should include the signature of the grantor or grantee. It should also list the date and contain the signature of at least one witness. Most commonly, the witness is a notary public or another authorized official. The witness must be physically present when the document is signed and must provide their own name and address for identification purposes.  However, the witness may not be a party to the deed.

Miscellaneous Property Considerations

If applicable, it is also necessary to account for surveys done on the property and any dower rights that could be asserted.

A survey provides a detailed map of the property, identifying its boundaries, and existing structures, and potential encroachments or easements. This document ensures that the grantee understands exactly what is being conveyed and helps prevent future disputes over property boundaries. When the deed conveys real estate that has been surveyed, the deed must state the surveyor’s name. Dower rights pertain to a spouse’s legal interest in the property. Ensuring that dower rights are properly addressed and waived, if necessary, protects the grantee from future claims or forced sales. A majority of states no longer recognize dower rights, but they are still recognized in Ohio.

Proper Deed Delivery & Acceptance

It is essential that the executed deed be properly delivered for the transfer of ownership to be effective. Delivery signifies the official transfer of ownership from the grantor to the grantee. A proper delivery means that the grantor has voluntarily transferred possession of the deed with the intent to pass the title to the grantee. The grantee must also accept the deed to constitute a good delivery.

Deed Recording

A crucial final step when conveying a deed is the recording. In Ohio, the deed does not need to be recorded in order to pass title, but failure to do so could put the original buyer at risk of losing the property if it is sold to someone else. The deed should be recorded in the county recorder’s office of the county in which the property being conveyed is located. Recording the deed provides the necessary constructive notice of the conveyance to creditors and future purchasers. This process protects you from potential legal disputes, establishes your claim to the property, and ensures that you can easily sell or transfer the property in the future without unnecessary complications.  If a deed is not properly recorded, the grantee’s rights to the property may not be recognized under the law by third parties. Failure to properly record could present major challenges for home buyers as a lender may deny a mortgage application because the deed is not in the buyer’s name.

By adhering to these procedures, purchasers or conveyors of property not only protect their current property rights, but also facilitate smoother transactions in the future. Ultimately, this diligence in managing your deed documentation upholds the integrity of your property ownership rights and helps to avoid costly legal disputes down the line.

For more information or to contact one of our Real Estate attorneys, please reach out to request a consultation or call us at 216-696-1422.

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McCarthy Lebit would like to thank law clerk Kendra Ivery for her effort in assisting with the preparation of this legal blog post for The More Report.

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