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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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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Accommodating Employees Generally

A “reasonable accommodation” is a modification to the way a job is performed that allows a person with a disability to complete his or her job. 

Under the Americans with Disabilities Act (the “ADA”), employers must provide reasonable accommodations to employees with disabilities.  Similarly, under the Pregnant Workers Fairness Act (the “PWFA”), employers are required to provide reasonable accommodations for employees with limitations related to pregnancy, childbirth, and related medical conditions.

However, employers are not required to make reasonable accommodations if doing so would create an “undue hardship” on the business.  Whether an undue hardship exists is determined on a case-by-case basis and can depend on the nature and cost of the accommodation in relation to the employer’s size and resources.  Courts generally look to several relevant factors in determining whether an accommodation would impose an undue hardship, including:

• The nature and cost of the accommodation;
• The employer’s financial resources;
• The number of persons employed in the workplace; and
• The accommodation’s effect on the employer’s expenses/resources.

Before simply denying an employee’s request for accommodation, though, employers must engage in an “interactive process.”  In other words, even if the employee’s requested accommodation is unreasonable—or even if it would present an undue hardship—the employer is required to engage in an open conversation with the employee to determine whether an alternative accommodation can be identified.

Service Animals in Restaurants

The ADA is broken into several parts. Title I of the ADA requires employers, as noted above, to make certain accommodations for their employees. Title III, on the other hand, requires places of public accommodation to be designed in compliance with accessibility standards. Title III of the ADA explicitly discusses the concept of service animals: it defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities,” and members of the public who use a service animal are generally permitted to take their animal into areas of a business where the public is permitted to go.

Whether a disabled employee is entitled to an animal in the workplace, however, presents a more challenging issue.  Unlike Title III, Title I of the ADA (which deals with accommodations for employees) does not expressly discuss service animals.  Legal guidance on the issue is very limited, and the guidance that does exist does not present a one-size-fits-all solution.  It, instead, acknowledges that an employees’ entitlement to accommodation depends on fact-specific circumstances. The use of service animals by restaurant employees thus depends upon whether the request is reasonable and whether it presents an undue hardship on the employer.

In the restaurant setting, employers must be particularly concerned about the cleanliness of their business and the safety of their patrons and workers.  For these reasons, if one employee’s request for a service animal creates an allergy risk for others—and if an employer cannot modify the employee’s workspace to eliminate that risk—the employee might not be entitled to the accommodation.  Rather, the accommodation may be considered unreasonable and may impose an undue hardship on the employer.   

Obligations to New Mothers

Several laws offer protection to new/expecting mothers in the workplace. For example, Title VII of the Civil Rights Act of 1964 protects employees against discrimination and prejudice in the hiring and firing of employees on the basis of pregnancy; the ADA protects employees who suffer from pregnancy-related disabilities; and the PWFA builds on the ADA by protecting employees who have known limitations related to pregnancy and childbirth (which might include post-childbirth recovery, cesarean sections, changes in hormone levels, etc.).  Notably, the PUMP Act—which became law in December of last year—also requires employers to provide employees with an area (other than a bathroom) to express breast milk at work, which must be functional for pumping milk, shielded from view, free from intrusion, and available as needed.

The Ohio Department of Health (the “ODH”) has issued guidance specifically designed to help restaurant owners provide lactation accommodations to breastfeeding employees.  According to the ODH’s guidance, “[r]estaurants have found many creative solutions to accommodate breastfeeding employees,” and “[e]ven small restaurants and fast-food industries with limited space and rigid time schedules can make it work.”

Among other solutions, the ODH suggests that restaurants can effectively accommodate breastfeeding employees by creating a private space (with partitions/privacy screens) in an employee break area or by making an office area available (so long as the office is free from surveillance).

Balancing Employees’ Needs With Patrons’ Safety

While restaurant owners sometimes have obligations to accommodate disabled employees, they also have obligations to the public and to their patrons.  Sometimes, for example, an employee may have a health concern—like an infectious disease—that may prevent the employee from safely handling food and/or interacting with diners.

For this reason, restaurants should consider developing sick worker policies to help prevent the transmission of foodborne illness or communicable diseases. When employees are suffering from certain symptoms (e.g., diarrhea, vomiting, fever), an effective sick worker policy might require employees to self-report their illness to a supervisor and to stay home from work until the symptoms pass.

Although this article identifies a few legal issues that restaurant owners may encounter, it does not constitute legal advice, nor does it anticipate all legal questions that may arise in the workplace. Adequately accommodating employees requires careful compliance with state and federal laws, and employers are advised to seek legal counsel when they develop specific legal concerns.

To seek counsel from our Hospitality & Liquor Law practice group, please reach out to request a consultation or call us at 216-696-1422.

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The National Labor Relations Act (the “NLRA”) gives certain employees the right to organize, join unions, collectively bargain, and generally communicate with each other and work together to improve their working conditions. In its McLaren Macomb decision published last week, the Board considered the following question: by offering severance agreements to furloughed employees—which imposed non-disparagement and confidentiality obligations—did the employer unlawfully interfere with the employees’ NLRA rights?

The Board specifically reviewed severance language that (1) prevented employees from disclosing the terms of the severance agreement “to any third person” and that (2) required employees “not to make any statements to [the employer’s] employees or to the general public which could disparage or harm the image” of the employer or any of its “affiliated entities.” The Board decided that these provisions violate the NLRA because they have the capacity to restrain employees wishing to exercise their rights under the NLRA.

In reaching this conclusion, the Board explained that the contractual language was problematically broad for several reasons: the confidentiality provision would prevent communications with both former employees and the public; the non-disparagement provision did not define the term “disparagement” or explain what kinds of communication were prohibited; the severance agreement not only prohibited an employee from disparaging the employer but also prohibited disparagement of related entities; and the provisions applied indefinitely (rather than for a limited period of time). The Board further explained that such broadly worded provisions are problematic because they could restrain employees who may otherwise exercise their rights to communicate with former coworkers about working conditions or to assist the Board in NLRA investigations.

Last week’s decision serves as a disruption to previously established norms. The Board previously permitted employers to include confidentiality and non-disparagement provisions in their severance agreements, and these provisions became customary terms in severance agreements. Last week’s decision expressly overturned prior precedent.

The Board’s decision has therefore left employers with several questions moving forward. For example, if broadly worded non-disparagement and confidentiality provisions are a problem, can an employer comply with the NLRA by drafting narrower provisions? What would an appropriately narrow provision look like? What are the consequences of a problematically broad non-disclosure agreement? Will the entire agreement be unenforceable? Will the employer face liability under the NLRA?

Although these questions have not been fully answered, there are some key takeaways that can be drawn from the Board’s decision.

• First, employers should carefully determine whether a separated worker even has rights under the NLRA. The NLRA gives many employees—including non-union employees—the right to communicate and work with their coworkers to achieve better working conditions, but it does not give these rights to all workers, including supervisory employees, management employees, and independent contractors. If a separated worker does not have NLRA rights, then an employer can still freely bind the worker to non-disparagement and non-disclosure obligations.
• Second, when offering a severance agreement to an employee, an employer should consider whether non-disclosure and non-disparagement provisions are absolutely necessary. If it is not vital to include these provisions, an employer could consider foregoing their inclusion in an agreement altogether (so as to avoid any risk of an unfair labor charge).
• Third, if a severance agreement will contain a non-disclosure or a non-disparagement provision, these provisions should be drafted as narrowly as possible. They should be limited in time; they should define important terms; and they should expressly state that an employee still has the right to participate in the Board’s investigations and to freely communicate with former coworkers about workplace conditions.

The Board is expected to release additional guidance on this issue in the coming months, and McCarthy Lebit will continue to review these matters as further information becomes available. To seek counsel from our employment law group, please reach out to request a consultation or call us at 216-696-1422.

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By removing humans from part of the hiring process, employers often hope that they are also removing human prejudices and discrimination from their decision-making as well. That may not always be the case. Just this month, the Equal Employment Opportunity Commission (“EEOC”) issued guidance, warning that the use of artificial intelligence in hiring decisions “may disadvantage job applicants and employees with disabilities.”

As the EEOC explained, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against employees on the basis of disability. It also generally requires employers to provide reasonable accommodations to permit an applicant with a disability to apply for a job.

The EEOC warned that overreliance on technology during the hiring process may result in unintended violations of the ADA. For example, if an employer uses an automated software that screens out all applicants who have had significant gaps in their employment history, the software could be inadvertently excluding employees who stopped working to undergo treatment for a disability. Similarly, an employer that uses video interviewing software to analyze applicants’ speech patterns may unintentionally place applicants with speech impediments at a disadvantage.

Notably, the EEOC further warned that employers may be liable for discriminatory results caused by automated software, even if the software was designed, implemented, and administered by an outside vendor.

The EEOC therefore provided guidance to employers who intend to use automated software when making employment decisions. According to the EEOC, employers should:

• Determine whether their automated software was designed with individuals with disabilities in mind, and if an employee is expected to interface with the software, make the interface accessible to individuals with disabilities or present alternative interfacing formats for those with disabilities;
• Provide all applicants information about the automated software—including information about the traits/characteristics that the software assesses—and provide all applicants with instructions for requesting reasonable accommodations;
• Ensure that the automated software only screens/assesses candidates based on the abilities and qualifications that are truly necessary for the job.

The EEOC’s guidance regarding the ADA comes just a few months after it launched an initiative in October 2021 designed to “ensure that artificial intelligence and…and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws.” Employers can therefore expect that the EEOC will publish further guidance regarding artificial intelligence and other federal employment laws.

For more information about the EEOC’s guidance or to seek counsel from our employment law group, please reach out to request a consultation or call us at 216-696-1422.

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(1) Discrimination Camouflaged as Succession Planning

Succession planning is, without a doubt, a legitimate concern for businesses. But employers often mistake a candidate’s “youth” with longevity. How does an employer know that a younger employee will stick around longer than an older one? The truth is: they don’t. Younger employees may “job-hop” away from a position much faster than an older candidate would leave or retire. Be mindful of phrases that demonstrate the employer is using “succession planning” as a proxy for age discrimination, like:

• Looking for candidates who are “midcareer”
• Seeking employees who have enough “runway”
• Referring to a long-term employee as a “blocker” (meaning an older employee whose continued presence is “blocking” a younger candidate from rising in the organization)
• Labeling certain employees as “high potential” (if the organization only refers to be people under a certain age threshold as “high potential,” that is a problem)

(2) Aspirations for the Organization

Age discrimination sometimes appears in seemingly-innocuous expressions of high-minded goals for the business. It shouldn’t take long, however, to see that these comments are related to age:

• Bringing in “new blood”
• Looking for a “fresh face”
• Describing the workplace as a “high energy” or “fast paced” environment
• Getting rid of “old school” mentality
• Dispersing with the “old guard”
• Clearing out the “dead wood”

(3) References to Retirement

Discussions of retirement are not, of themselves, necessarily age discrimination. But remember: the boss is not asking your 30-something coworker what his retirement plans are, nor is he asking when he is planning on retiring. Questions about retirement are necessarily intertwined with age-related stereotypes, so be careful of expressions like:

• Describing someone as “retirement-eligible”
• Someone is “in the retirement window” or of “retirement age”
• Job positions, postings, or descriptions that express caps on years of experience (there’s nothing wrong with a minimum-years-of-experience threshold, but a limit on total years of experience is much more difficult to justify without wandering into age discrimination)

(4) Expressions of Concern

There’s nothing wrong with an employer being concerned about its employees – in fact, it should be encouraged! But an employer whose “concern” is simply derived from ageist stereotypes is not helping the employee – it is just engaged in a condescending method of age discrimination. Look out for:

• “Why do you want to keep working?”
• “Aren’t you ready to call it quits”
• “Maybe it’s time to hang it up”
• “Wouldn’t it be nice to spend more time with your grandkids?”
• “You are looking tired”
• “Shouldn’t you be playing golf?

(5) Teasing and Insults

In some workplaces, some good-natured “ribbing” is to be expected. If you find, however, that the jokes are age-related, keep in mind that the attempts at humor may reflect how you are being earnestly perceived. Be wary of:

• Jokes about how an employee is old enough to have witnessed some long-ago historical event
• Jokes about how an employee can or cannot do certain things “at his age”
• Age-related slurs like “fossil,” “relic,” “fogey,” or “dinosaur”

Unfortunately, there are many ways that employers can say, without stating explicitly, “you’re too old” to an employee or job candidate.

If you have concerns based on what you’ve heard or seen in your workplace, please reach out to request a consultation, visit Jack’s bio for his contact information to reach out to him directly, or call us at 216-696-1210 to see how our employment law attorneys can assist you.

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The Act will have wide-standing implications in the field of employment litigation.

The Act amends the Federal Arbitration Act (the “FAA”), Title 9 of the United States Code, with respect to the arbitration of disputes involving sexual assault and sexual harassment. A sexual assault dispute is broadly defined as a dispute involving a nonconsensual sexual act or sexual contact, including when the victim lacks capacity to consent. Likewise, a sexual harassment dispute is broadly defined as a dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal, or state law.

In general, the Act states that, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under federal, tribal, or state law and relates to the sexual assault dispute or the sexual harassment dispute.

Of course, pre-dispute arbitration agreements are frequently found in employment agreements and such arbitration agreements typically require arbitration of employment-based claims involving quid pro quo sexual harassment, hostile work environment based on sex, and retaliation claims based on reporting sexual harassment and participating in investigations of sexual harassment. Those types of employment-based claims would now fall within the Acts prohibition of forced arbitration of sexual assault and sexual harassment claims in the workplace.

The determination of whether the Act applies with respect to a dispute shall be determined under Federal law by a federal or state court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator. Further, under the FAA, states are prohibited from passing or enforcing laws which are inconsistent with the FAA.

Update on Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act – March 4, 2022

On March 3, President Biden officially signed H.R.4445. The law went into effect immediately upon signing, effectively voiding any mandatory arbitration clauses in Employment Agreements when it comes to claims of sexual harassment or assault in the workplace. Employers are strongly advised to consult with legal counsel for full review and revision of existing employment agreements and should immediately negotiate the conclusion of any active or in progress arbitrations in these matters.

For more information or assistance, please reach out to request a consultation or give us a call at 216-696-1422.

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How Did We Get Here?

OSHA published its ETS on November 4, 2021. Almost immediately thereafter, several states, employers, and nonprofit organizations challenged its enforceability, and the Fifth Circuit Court of Appeals initially issued a stay of enforcement and implementation of OSHA’s vaccination/testing mandates.

However, because many different parties challenged OSHA’s ETS in many different federal courts, a special judicial panel consolidated the cases and selected the Sixth Circuit Court of Appeals—via a lottery system—to hear them all. On December 17, 2021, the Sixth Circuit lifted the Fifth Circuit’s stay.

Multiple parties immediately challenged the Sixth Circuit’s decision by filing petitions with the Supreme Court. On January 13, 2022, the Supreme Court issued its decision staying implementation of the ETS until the Sixth Circuit reaches a final conclusion on the enforceability of OSHA’s ETS.

What Was the Supreme Court Rationale?

The Supreme Court’s majority opinion concluded that (1) the parties challenging OSHA’s ETS were likely to succeed on the merits and that (2) OSHA’s enforcement of the ETS must be placed on hold until the Sixth Circuit reached a final decision on the merits.

In coming to this conclusion, the Supreme Court noted that Congress created OSHA when it passed the Occupational Safety and Health Act of 1970 (the “Act”). Therefore, OSHA only has those powers that Congress expressly provided for in the Act.

According to the Supreme Court’s ruling, the Act only permits OSHA to regulate matters of workplace/occupational safety. Although COVD-19 impacts the workplace, it is not a workplace-specific risk. Instead, it is a disease that spreads everywhere including in schools, at sporting events, and any other place where people gather. In other words, COVID-19 is a general health risk—not just an occupational risk—and it reaches areas that fall outside OSHA’s area of expertise.

As the Supreme Court put it: “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh issued the Supreme Court’s decision, and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas authored a concurring opinion.

The liberal wing of the Supreme Court—consisting of Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan—dissented. The dissenting justices indicated that the Act demands OSHA to issue emergency temporary regulations when (1) “employees are exposed to grave danger…from new hazards” and (2) an “emergency standard is necessary to protect employees from such danger.”

Noting that COVID-19 constitutes a new hazard that poses a grave danger to millions of employees and noting that tests, face coverings, and vaccinations serve as proven methods to address that danger, the dissenting justices opined that the Act actually requires OSHA to issue regulations related to COVID-19 and the workplace.

What Comes Next?

The Supreme Court’s decision is not the final word on this matter. Instead, it merely stays implementation/enforcement of the ETS until the Sixth Circuit can fully review challenges to the ETS.

The Supreme Court did opine, however, that the parties challenging the ETS were likely to prevail. For this reason, OSHA may—in an effort to address the Supreme Court’s concerns about the extent of the agency’s powers—issue a more narrow/limited set of workplace COVID-19 regulations.

More Insight from McCarthy Lebit on the “Vaccine Mandate”

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges.

Sixth Circuit’s Reversal of Fifth Circuit’s Stay of OSHA ETS

Check out the previous legal advisory from Frank George, published on December 22, 2021, to read more about details, highlights, and updates on OSHA’s ETS.

OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them

Check out the previous legal advisory from Frank George, published on November 9, 2021, to read more about details, highlights, and updates on OSHA’s ETS.

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First, an employer is permitted to know an employee’s vaccination status. There is nothing legally improper about that inquiry. Second, earlier this month, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), generally requiring businesses with 100 or more employees to implement a mandatory vaccination policy that incudes maintaining proof of employees’ vaccination status. Thus, for many employers, they may already have, or will start to have, evidence of vaccination status on file for their employees.

Also, most employers have policies regarding truth and honesty, particularly with respect to documents and information submitted to the company. If an employer doesn’t have such a policy, it should adopt one as soon as possible. If an employer learns that an employee has been dishonest in its dealings with the company, that alone is often grounds for termination.

The only complexity comes from if an employee asks for a medical or religious accommodation upon being confronted with the dishonesty. An employer does not have to excuse a violation of conduct rules that are job-related and consistent with business necessity, even if that violation is related to an accommodation request. For that reason, documenting a discipline or termination decision and when it was made (after discovering the dishonesty but before the employee requested the accommodation) can be important.

Of course, the employer need not impose such a harsh penalty. It is unlikely, for example, that the Green Bay Packers will terminate Aaron Rodgers – he is the quintessential “key” employee for the organization. Employers should bear in mind, however, that if they do not terminate one employee for such dishonesty regarding their vaccination status, it may make it more difficult to justify future terminations on similar grounds for other employees.

NOTE: On Wednesday, The NFL fined the Green Bay Packers organization $300,000 for its part in not properly enforcing safety protocols, including permitting Rodgers to attend practice and team meetings maskless. The NFL also warned that future violations could result in more severe punishment, including lowered or lost draft picks. Meanwhile, the NFL also fined Aaron Rodgers and Packers wide receiver Allan Lazard $15,000 each for breaking league protocols by going to a Halloween party, despite being unvaccinated.

More thought leadership about vaccine “mandates” and the OSHA ETS

LEGAL ADVISORY: OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them

Employment Law Associate Frank George breaks down the OSHA ETS for private employers and the resulting legal challenges that have lead to an injunction blocking implementation and enforcement since OSHA announced the new rules

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Jack Moran an Ann-Marie Ahern made an appearance on The More Report, Podcast Edition, to discuss President Biden’s “vaccine mandate.”  Listen to Jack and Ann-Marie discuss the legal challenges that the administration is likely to face if implement this policy.

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