SCOTUS: A Reverse Discrimination Claim is Just Another Discrimination Claim

Yesterday, the Supreme Court issued a unanimous decision in Ames v. Ohio Dept. of Youth Services. No surprises here. The plaintiff in Ames was a heterosexual employee who was passed over for a job in favor of a lesbian woman. Ames claimed that she was discriminated against based on her sexual orientation. 

Justice Jackson

Some circuit courts (although, notably *not* the Third Circuit where I practice) had held that a plaintiff in a Title VII discrimination claim who is a member of a majority group must make an additional showing of "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." This created a higher evidentiary standard for plaintiffs in a majority group. 

The SCOTUS opinion, authored by Justice Jackson eliminated this extra requirement: "We hold that this additional 'background circumstances' requirement is not consistent with Title VII’s text or our case law construing the statute." And, "the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group." So, a reverse discrimination claim is just another discrimination claim. 

This was pretty much a foregone conclusion before the opinion even came out, but now it's official. Perhaps more interestingly, Justice Thomas (joined by Justice Gorsuch) signaled "In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool." The framework is currently used in disparate treatment claims based on circumstantial evidence (which is most of them), and McDonnell Douglas is one of the most cited SCOTUS decisions ever. 

New Third Circuit Religious Accommodation Case - Beards and Air Masks

An interesting new precedential decision from the Third Circuit in Smith v. City of Atlantic City was published on May 30, 2025. The fire department prohibited a Christian employee from growing a beard of any length in violation of his religious beliefs. 

Not official use.

The plaintiff was classified as a firefighter but actually worked as an Air Mask Technician. Accordingly, he had not actually fought a fire since 2015 and instead served on scene away from the smoke and assisted the firefighters with their "self-contained breathing apparatuses" (SCBAs). The plaintiff himself could not properly wear a SCBA with a beard because the beard would preclude a seal from forming. 

Would allowing him to grow a beard impose an "undue hardship?" The Third Circuit vacated the entry of summary judgment for the employer:

It is telling that no Air Mask Technician has been called to engage in fire suppression for several decades . . . The City can only theorize a vanishingly small risk that Smith will be called in to engage in the sort of firefighting activities for which an SCBA is required. There are no other personnel—whether administrators or active firefighters—who are seeking an accommodation relating to the SCBAs, so the risk that the City will be unable to respond to an emergency safely is all the more unlikely. 

Thus the plaintiff may proceed on his Title VII religious accommodation claim (and also a constitutional Free Exercise Clause claim).

PA Medical Marijuana and Employment Law

A quick slide presentation highlighting the key employment-related provisions of Pennsylvania's Medical Marijuana Act (and some guidance on CDLs):

Third Circuit: Home Health Aide travel time between client sites is compensable under the FLSA

Time spent by Home Health Aides (HHAs) traveling between client sites is compensable time under the FLSA and therefore must be paid time. This remains true even if the HHA has some off-duty time immediately before or after the travel.
DOJ v. Nursing Home Care Management, Inc. (3d Cir., Jan. 31, 2025). 

President Trump Removes EEOC Commissioners and NLRB Member

President Trump removed a member of the NLRB, and two EEOC commissioners, leaving both without a quorum for the time-being. Can he do that? Under the statutory text of the NLRA, clearly no (it requires a hearing and neglect of duty or malfeasance). Under the statutory text of Title VII (re: EEOC), removal is not expressly addressed - it does generally specify five year terms though.

There is, however, a constitutional issue. The executive power is vested in one person, the President. This power *generally* includes the power to remove people who assist him in wielding the executive power. In Humphrey’s Executor v. U.S. in 1935, SCOTUS recognized an exception, holding "that Congress could create expert agencies (specifically, the FTC) led by a group of principal officers removable by the President only for good cause."

In 2020, SCOTUS limited that holding by striking down the CFPB framework in which "an independent agency [is] led by a single Director" subject to statutory limitations on the President's power to remove them. Seila Law v. CFPB (linked below). The key distinction was a multi-member board versus a single director.

The NLRB and EEOC seem a lot more like the FTC in Humphrey's Executor than the CFPB in Seila Law. Some Justices appear inclined to overrule Humphrey's Executor though, and these recent removals may put the issue in front of SCOTUS.

President Trump rescinds federal contractor affirmative action executive order

Earlier this week, President Trump signed a new executive order, Ending Illegal Discrimination and Restoring Merit-Based Opportunity. One major piece of this order is that it rescinds Executive Order 11246 (1965, since amended). EO 11246 generally required federal contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin."

Notably, affirmative action did *not* mean implementing quotas, set-asides for specific groups, or hiring based on protected characteristics over merits (indeed, these would violate anti-discrimination statutes like Title VII). Instead, the order required employers to create organizational profiles with workforce analysis - tracking total number of employees by job title and identifying areas of underrepresentation compared to the availability of qualified women and minorities in the labor market; setting targets; and implementing action-oriented programs like recruitment and training programs. 

Note that federal contractors are still subject to other affirmative action requirements regarding disabilities and veterans.  

SCOTUS: Preponderance of the evidence standard for FLSA exemptions

New Supreme Court Decision! Today, the Supreme Court held that employers looking to prove an employee is exempt from the minimum wage and overtime requirements of the FLSA must do so by a "preponderance of the evidence." This is, of course, the standard burden of proof in civil litigation. Some courts, however, had applied a higher standard like "clear and convincing evidence." Here in the Third Circuit, some cases have used language like "plainly and unmistakably." Today's decision makes clear that preponderance of the evidence is the standard.

You can read the full decision here.