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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Key Takeaways Relevant to Employees

• The ordinance specifically lists hairstyles and textures such as braids, locs, twists, Bantu knots, or afros as examples of protected hair textures or styles.
• The protection applies in employment, housing, and public accommodations. The ordinance only applies to employers with four or more employees in Cuyahoga County.
• The ordinance treats hair texture and hairstyle discrimination as a form of race or national-origin discrimination.
• Employers may maintain appearance, grooming, and dress code policies, but these must be applied in a race-neutral manner, must not disproportionately impact protected hairstyles or textures, and must be based on legitimate business needs.

Why the CROWN Act Matters

It Fills a Gap

Ohio does not have a statewide CROWN Act.  This local ordinance gives employees in Cuyahoga County enforceable rights against hair-based discrimination in the workplace.

It Promotes Inclusion in the Workplace

Many jobseekers and employees have reported being pressured to alter their hair, adopt “professional” (often Eurocentric) styles, or have faced discipline or missed promotions due to grooming policies.  For example, a recent survey of 1,324 Black women in Northeast Ohio found that 68% of respondents had experienced inappropriate comments about their hair at work, and 51% faced retaliation after objecting to such comments. [1]

Actionable Protections

Employees are no longer limited to reporting concerns internally. The ordinance assigns complaints to the Cuyahoga County Human Rights Commission for investigation, mediation, hearings, and to impose civil penalties as needed. 

The Bigger Picture

Cuyahoga County is currently the only county in Ohio with a CROWN Act or similar law, but protections are expanding.  The movement began in 2019 when California enacted the first CROWN Act, and since then, about two dozen states have adopted similar laws. In Ohio, while there is no statewide CROWN Act, several cities – including Akron, Cincinnati, and Cleveland Heights – have passed ordinances prohibiting hair-based discrimination.

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

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[1] https://www.olbcfoundation.org/post/olbcf-applauds-cuyahoga-county-s-historic-passage-of-ohio-s-first-crown-act; https://www.projectnoircle.org/_files/ugd/a41a72_8fbdfe8156b542f0af33e50c2b6f57a5.pdf

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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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Now, before we dive into the specifics, let’s be very clear: there is no one-size-fits-all advice when it comes to evaluating a job offer. You’re unique, and therefore you have your own unique perspective and objectives. Perhaps your new job comes with a higher salary or offers notable opportunities for growth and development. Maybe it’s located near your children’s school. Or maybe it permits you to work in a niche field that aligns perfectly with your interests. Only you can decide how much weight to give each aspect of a job offer, and in some cases, it may be worth accepting a few drawbacks in exchange for the things you truly value. 

Nonetheless, it’s important to make your decisions with your eyes wide open, so here are a few questions you might want to be asking before accepting that job offer.

Will you be bound by an arbitration agreement?

Employers use a variety of tools to protect their interests and safeguard the investment that they are making in you as an employee of their company. One such tool is the arbitration agreement.

Without an arbitration agreement, if you get into a legal dispute with your employer, you can likely file a lawsuit in court. This is often the best venue for an employee: court proceedings are public; the judge generally permits an employee to conduct broad discovery regarding their claims (and requires the employer to provide the employee with all relevant documentation); and a jury typically decides whether the employee is entitled to relief.

If your employer binds you to a valid arbitration agreement, however, you won’t be able to just publicly file your claims in court. Instead, arbitration is a private process, where a private arbitrator (rather than a judge or a jury) makes a binding decision to resolve a legal dispute. Oftentimes, in arbitration agreements, employers also give themselves the right to determine where the arbitration will take place and to limit the discovery an employee is permitted to conduct.

So, before accepting your job offer, you might want to determine whether your employer is going to require you to sign an arbitration agreement or otherwise bind you to an arbitration provision.

Will you be bound by a non-compete agreement?

Employers also try to protect their interests by having their employees sign noncompete agreements. 

A noncompete agreement is a binding contract that prevents workers from seeking employment with a competitor or starting their own competitive business. Under preexisting Ohio law, noncompete agreements are lawful and enforceable so long as they are reasonable in scope, which typically means they are limited in terms of: (1) time (often expiring within one to two years after the employee’s employment); and (2) geography (often applying only where the employer actually conducts business).

Before accepting a job, it’s important that you understand whether you’ll have any post-employment restrictions.  Maybe you’re a materials scientist, and you’ve spent your whole career developing coatings. When your employment ends, will you be able to find another job in your field? Or is your potential employer seeking a non-compete agreement that is so broad as to cause you concern?

What happens to your intellectual property?

When an employee joins a company, it’s not unusual for the employer to require the employee to sign an Intellectual Property (“IP”) Assignment Agreement.  By signing this agreement, the employee agrees to transfer ownership of IP (like inventions and creative works) to his/her employer.  This kind of agreement makes a lot of sense: if an employee is creating work-product on behalf of his/her employer, the employer is going to want to make sure that it owns the work-product.

However, before you execute an IP Assignment Agreement, there are a whole host of questions you might want to consider.  Do you currently own any patents? Have you developed any inventions? How about any creative works? When you start your job, do you plan to continue developing your own IP on your own time? 

If the answer to any of these questions is “yes,” you’ll want to take a very careful look at any IP Assignment Agreement that your employer asks you to sign. You’ll want to determine whether it is sufficiently narrow—i.e., whether it only applies to IP you develop (1) during your employment and (2) with your employer’s equipment. 

How much bargaining power do you really have as a prospective employee?

As a practical matter, whenever you’re thinking about negotiating the terms of employment, there’s another question you should ask yourself (not your employer). How much bargaining power do you really have?

The answer to this question depends on your individual situation. For example, perhaps you enjoy your current job.  You’re open to alternative employment, but you don’t have to find a job right away. You’re not desperate. If that’s the case, maybe you’ll feel comfortable making a lot of requests in response to a new job offer. If the offer falls through, you’re still employed.

By contrast, you might be experiencing a period of unemployment, and you need to find a job right away. In that circumstance, you might want to be very measured when communicating with your prospective employer: you don’t want job-related requests to place your offer at risk.

And, of course, discussions related to job offers are not a one-way street. The employer will have its own set of considerations. The employer might be desperate to hire a candidate and might be willing to make several favorable changes to the job offer. In other circumstances, an employer may have interviewed many highly qualified applicants for a single position. That employer may not feel the need to revisit the terms of its original offer.

At McCarthy Lebit, we help employees evaluate their employment agreements and offer letters. Whether you have questions regarding a proposed employment agreement or if you need assistance negotiating specific terms, our employment team is equipped to assess your situation and offer appropriate assistance.

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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McCarthy Lebit would like to thank law clerk Douglas (DJ) Carter for his work in assisting with the preparation of this legal blog post for The More Report.

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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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The Ordinance takes effect on October 27, 2025, and it applies to employers with 15 or more employees within city limits. The Ordinance makes it unlawful and discriminatory for an employer to:

• Ask about an applicant’s prior earning history.
• Screen an applicant based on past earning history or current earnings.
• Rely exclusively on an applicant’s earning history when negotiating an employment contract.
• Refuse to hire or otherwise retaliate against an applicant who refuses to disclose his/her earning history.

The Ordinance further requires employers to disclose the salary range in any job advertisement or formal posting that invites employment applications.

Pay Transparency Ordinance Enforcement & Penalties

When Cleveland’s Ordinance becomes effective in October, employers can face penalties for non-compliance. Employers can be fined up to $1,000 for a first offense, $2,500 for a second offense, and $5,000 for any additional offenses.

Key Provisions of the Ordinance

However, the Ordinance does acknowledge certain exceptions. For example, the Ordinance does not apply when: an applicant seeks a promotion with his/her current employer; an applicant voluntarily discloses his/her earning history to an employer; or the applicant is re-hired by an employer that already has access to information about the applicant’s earning history. Similarly, the Ordinance does not apply when a position’s salary is decided through collective bargaining.

According to the Ordinance, studies have shown that considering an applicant’s previous earnings can lead to discrimination and can expand a gender-based pay gap. The Ordinance also indicates that women, on average, earn approximately 83 cents for every dollar earned by men. Over the course of a 40-year career, this can result in a wage differential of more than $400,000. The wage gap is even more significant for women of color. Studies show that Black women make 66 cents for every dollar earned by men, while Latina women make 58 cents for every dollar earned by men. Without pay transparency laws, wage gaps can be perpetuated. If female employees historically earn less than male employees—and if employers rely upon employees’ historical earnings when setting wage rates—women may continuously receive lower salaries than their male counterparts. The City of Cleveland’s Ordinance is designed to break this cycle by prohibiting consideration of an applicant’s historical earnings.

Cleveland is not the first city in Ohio to pass a pay transparency ordinance. In fact, in recent years, Cincinnati, Columbus, and Toledo have all taken steps to reduce the wage gap by passing their own pay transparency ordinances. However, Cleveland’s Ordinance has been the most aggressive the state of Ohio has seen so far. As of now, Cleveland is the only city in the State of Ohio to require employers to disclose salary ranges on their job postings.

A Step Toward Pay Equity

Pay transparency laws have gained momentum across the United States, and there is reason to believe that these laws have effectively reduced the historical wage gap. According to the Women’s Foundation of Colorado, for example, Colorado’s wage gap has been reduced by seven cents since Colorado passed its 2021 Equal Pay for Equal Work Act, and female employees in Colorado are now making almost $3,000 more per year on average.  Washington and California have also successfully narrowed the gender-based pay gap since enacting state-wide pay transparency laws. Importantly, pay transparency laws are designed to increase salaries for women and people of color, without reducing salaries for others. Since the enactment of pay transparency laws, average salaries for men have not decreased.

For more information on Cleveland’s new Ordinance, or to seek counsel from our Employment practice 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 Julia I. Crandall 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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