By Susan B. Motschiedler
Unanimous Supreme Court Clarifies Standard for Majority-Group Title VII Claims
On June 5, 2025, the US Supreme Court issued a unanimous decision in Ames v. Ohio Department of Youth Services. The opinion, authored by Justice Jackson, held that “majority group” plaintiffs are not required to meet a different, heightened evidentiary standard under Title VII. Prior to the Ames decision, several federal circuits imposed an additional burden on plaintiffs in such “reverse discrimination” claims and required a showing of “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The Ames decision scraps that additional requirement, opening the door to more discrimination suits by majority group member plaintiffs.
Marlean Ames was a heterosexual woman employed by the Ohio Department of Youth Services (the Department) starting in 2004. Ames steadily rose through the ranks in the Department and applied for a promotion in 2019. Ames was not hired for the position; instead, the Department hired a gay woman. The Department subsequently demoted Ames into a role with significantly reduced pay and hired a gay man into her old position. Ames sued and alleged that she was denied promotion and demoted because of her sexual orientation.
Both the District and Sixth Circuit Appeals Courts dismissed Ames’ claim on the grounds that she had not demonstrated the “background circumstances” necessary to show discrimination against a majority group member. The Supreme Court’s opinion overturned the Sixth Circuit decision and held that the text of Title VII does not support the imposition of a higher burden on majority group plaintiffs: “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.” The opinion noted that Title VII prohibits discrimination against “any individual” based on protected characteristics, without distinction between minority and majority groups, and concluded that Title VII does not impose any heightened standard on a majority group plaintiff. Utah and Wyoming will now see a new standard for majority group discrimination claims, as both are in the Tenth Circuit – one of the circuits to have applied the “background circumstances” test. The Ames opinion may foretell an uptick in majority group Title VII claims.
Of particular note is Justice Thomas’ concurring opinion (joined by Justice Gorsuch) in which he argues that the reasoning behind the “background circumstances” – that employers do not discriminate against majority group members – is faulty. In a footnote, Justice Thomas cited an Amicus brief filed by the conservative group America First Legal Foundation (led by current senior Trump advisor Stephen Miller) and called out DEI policies. Justice Thomas wrote “[A] number of this Nation’s largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups. American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans.” This is in line with the Equal Employment Opportunity Commission’s (EEOC’s) emphasis on federal antidiscrimination protections for majority group employees under the second Trump administration.
Employers should continue to ensure that their employee policies (hiring, promoting, firing, disciplining, etc.) are equally applied to all employees, and treat any claim of discrimination seriously. If you have questions regarding your DEI initiatives or policies and compliance with equal opportunities for all employees, contact your employment attorney for review and consultation.
Political Pingpong Continues in Immigration Policies: Crackdown Likely to Continue, Though Targeted Areas and Industries May Change. Or Not.
The Trump administration’s mass deportation campaign has been in full swing. Reports of U.S. Immigration and Customs Enforcement (ICE) conducting workplace raids across the nation in agricultural fields, processing plants, restaurants, hotels, textile companies and on construction sites – often with the help of other federal agencies – have been widespread.
In connection with the mass deportation campaign, the White House deputy chief of staff issued a directive in late May that 3,000 arrests a day should be made. ICE regional offices similarly have quotas for workplace inspections of companies suspected of employing undocumented immigrants, and immigration attorneys have reported an extreme uptick in I-9 audits at workplaces. These audits are frequently the precursor to workplace raids, and the Trump administration has used them to detain workers without judicial warrants.
As a part of the directive for raids and arrests, ICE agents in Los Angeles targeted day laborers at a Home Depot parking lot and workers at clothing manufacturer Ambiance Apparel with immigration raids. More than 40 immigrants were arrested, and news of the arrests spread to the families and friends of those arrested as well as to coworkers and other locals who came to the raid sites and confronted ICE. The confrontation escalated, with officials employing pepper spray, batons and riot shields. Several people were arrested, and the protests spread to a couple of other nearby neighborhoods where raids had been reported.
The administration responded unilaterally and deployed 2,000-plus National Guard members and active-duty U.S. Marines without a request from the Governor of California. In a June 8 social media post about the deployment, President Trump characterized the protestors as “violent, insurrectionist mobs” comprised of migrants and directed federal agencies to “take all such action necessary to liberate Los Angeles from the Migrant Invasion, and put an end to these Migrant riots.” The Mayor of Los Angeles imposed a nighttime curfew on a one-mile radius area within the city that is still in place. Currently, the National Guard and Marines are still quartered in Los Angeles pending a federal suit regarding who has authority to call in troops – the State or the Federal Government.
These events occur against the background of a June 12 social media post from President Trump’s Truth Social account, which revealed that farmers, and hotel and “leisure” businesses were complaining about the “aggressive policy on immigration,” because they were losing workers who are “almost impossible to replace.” The United States Department of Agriculture (USDA) estimates that between 15-66% of agricultural workers are undocumented, depending on the geographic location and specific agricultural sector. The effects of a workplace raid can be extreme for a business and the surrounding community as well as for consumers, as shown by this raid at a meatpacking plant in Nebraska. Following President Trump’s post, the Trump administration reportedly instructed ICE agents to pause arrests at farms, hotels and restaurants.
But then came June 14, and the “No Kings” protests across the United States that saw historic turnout of Americans protesting President Trump. Although these protests were across the nation in red, blue and purple locales, on June 15, President Trump posted a long social media piece with wide ranging reasons why he was now directing the largest mass deportation program in history to direct its efforts at “America’s largest Cities, such as Los Angeles, Chicago, and New York,” - cities that are Democrat majority cities that had large protest turnout.
On the eve of June 16, the Washington Post reported that the White House had quickly reversed course on President Trump’s stance on farms, hotels and restaurants and that ICE had told agencies to continue with workplace raids in the hospitality and agricultural industries.
The focus and direction of immigration crackdown going forward is not clear, given the oscillating positions and aggressive arrest and raid goals. Adding to the uncertainty is the fact that ICE has reportedly already blown past its budget by $1 billion, with three months left in the fiscal year.
However, there are things employers can do now to protect themselves, regardless of geographic location or industry. Ensure your I-9 house is in order by contacting your employment counsel to conduct an internal I-9 audit and educate yourself and your employees about your rights and the federal government’s rights in a workplace audit or raid.
Trump Administration Unveils Plans to Cut the EEOC’s Budget and Stop Recognizing Disparate Impact Discrimination
On June 6, the EEOC unveiled its budget request and revealed that its staffing levels are anticipated to fall to just under 1,770 by fall of 2026. The White House proposed its own budget that reflected a slightly lower headcount at 1,750 by fall of 2026. The agency has not had a staff of fewer than 1,900 for as long as personnel records show on the EEOC website. More recently, the EEOC headcount has been higher than 2,000.
Likewise, the EEOC’s proposed budget is $20 million less than what Congress has allotted for the past several years. The Freedom of Information Act (FOIA) requests by Law360 demonstrate an exodus is already underway: Close to 100 employees took the Trump Administration’s offer of an early buyout; 21 employees resigned between inauguration and April 2; and 18 employees were terminated within the same time period. The EEOC is expected to process cases more slowly following this decrease in funding and staff.
This follows on the heels of a Trump administration directive to federal agencies to stop recognizing disparate impact discrimination. Disparate impact cases involve allegations of facially neutral policies and rules that have a disproportionate negative effect on a protected group. Several departments and agencies have already closed cases, dismissed investigations, withdrawn from or terminated agreements that relied on a theory of disparate impact.
Although President Trump’s directive orders the EEOC not to pursue such cases, individual plaintiffs can still request a right to sue letter and file a lawsuit. President Trump’s executive order is directed towards executive branch agencies and departments and does not affect judicial precedent or court reliance on that precedent. The legal standard for disparate impact discrimination comes from Griggs v. Duke Power Company a 1971 U.S. Supreme Court case that remains precedent. Going forward, an employee with a disparate impact claim will have to file in federal court to have the claim considered, meaning there could be an influx of court cases as the EEOC shrugs them off.
Electronic Scams Only Get Wilder and Support North Korean Regime
June is National Internet Safety Month and an annual reminder to train your employees on recognizing internet scams, avoiding providing sensitive employee and company data, and taking proactive steps to protect themselves and the company from scams. A more invasive scheme has evolved, however.
The threat of North Korean IT workers posing as remote workers has been a known threat for years. The U.S. Departments of State and Treasury and the FBI issued an initial advisory in May 2022, warning companies to be aware of the scheme and diligent in their hiring practices. The goal of the scheme has been to evade sanctions on North Korea and raise funds for the regime and fund its weapon programs. As of October 2024, there were several known instances of a U.S.-based company hiring a North Korean IT worker, including Fortune 500 companies and a financial institution. Yikes!
How have North Korean IT workers managed to get hired? They pose as remote IT freelancers or contractors and sometimes steal the identity of someone living in the US. The workers will apply for remote positions, never turn their cameras on and use AI to generate interview answers. The workers hire facilitators to receive company-issued devices and host them in an approved work location in the U.S and install remote administration tools on the devices so that the worker can access the network from another location, among other things.
The scheme has evolved further, however, and North Korean IT workers have stolen proprietary data and sensitive information or deployed ransomware against their employer. For example, one contractor stole company information that was then held ransom, demanding large sums of money to prevent the leak or sale of the information on the dark web. Another tech company reported on the intensity of the efforts and revealed it has received around 1,000 individual applications linked to a North Korean IT worker scam.
How can you protect your business as AI and thieves get more sophisticated and harder to detect?
· Schedule interviews through approved software and require a candidate interview with the camera turned on.
· Scrutinize resumes, references and background checks, particularly those with hard-to-verify education abroad.
· Conduct interviews without earbuds or headphones to decrease the risk of outside coaching.
· Watch the candidate during an interview to determine if they are reading answers or receiving cues from others or another screen.
· Do not allow unknown phone numbers to dial into meetings. Require everyone to be on camera for meetings.
· Verify receipt of equipment and serial numbers at the time of onboarding and do it on camera.
· Be suspicious of any requests for higher level access.
· Revisit security protocols frequently to access their robustness.
· Consult with an expert if you hire large numbers of remote IT contractors.
Question Corner
Navigating Maternity Leave Under FMLA
By Patrick M. Ngalamulume
Q. Can a pregnant employee start her 14 weeks of Family and Medical Leave Act (FMLA) leave before delivery, and if so, will this shorten her amount of postpartum leave?
A. Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to up to 12 weeks of unpaid, work protected leave during a 12-month period. An eligible pregnant employee can begin her 12 weeks of FMLA before delivery. However, doing so will reduce the amount of leave available to her after delivery.
Under the FMLA, pregnancy qualifies as a serious health condition if it involves incapacity or ongoing treatment by a clinician. As a result, if the employee needs leave before delivery due to pregnancy related issues, she can use her FMLA leave before delivery. Accordingly, any FMLA leave taken before delivery counts against the 12-week total, leaving fewer weeks available to the employee after delivery for bonding with the infant or resting.
