Supreme Court Erases Sixth Circuit’s Extra Burden on Majority-Group Plaintiffs

By David P. Frantz and Stephen S. Zashin*

Today, in another significant shift for Title VII of the Civil Rights Act of 1964, the United States Supreme Court has unanimously vacated the Sixth Circuit’s decision in Ames v. Ohio Department of Youth Services, rejecting the Sixth Circuit’s long-standing “background circumstances” requirement.

The Sixth Circuit, whose jurisdiction includes Ohio, has long required majority-group Title VII plaintiffs to clear an extra hurdle before proceeding under the familiar McDonnell Douglas framework (the burden-shifting test courts apply when discrimination is alleged only via circumstantial evidence). This “background circumstances” rule—also followed in the Seventh, Eighth, Tenth, and D.C. Circuits—required white, male, heterosexual, or other majority-group employees to show additional evidence, such as statistics indicating a pattern of bias against majority employees or proof that a minority decisionmaker made the challenged employment decision, before a court would infer discrimination. Writing the lead opinion for the Court, Justice Jackson observed that Congress “establish[ed] the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group,” leaving “no room for courts to impose special requirements on majority-group plaintiffs.” The Court remanded for application of the ordinary prima-facie standard.

The most intriguing part of the opinion perhaps stems from the concurrence by Justices Thomas and Gorsuch. They question whether McDonnell Douglas remains a useful framework. Such a dialogue signals that the Supreme Court could pursue even more far-reaching changes to Title VII down the road.

Today’s decision removes an evidentiary hurdle that existed only within the above-named Circuits and aligns majority- and minority-plaintiff claims under the same threshold test. Employers in Ohio and elsewhere should expect courts to assess termination, promotion, demotion, and hiring disputes involving majority employees without the now-defunct background circumstances prerequisite.

Ames arrives as Title VII doctrine continues to evolve rapidly. As covered in our recent alerts, a Texas federal court has just vacated key portions of the EEOC’s harassment guidance, and the Trump Administration continues to curtail DEI programs through executive orders and agency memoranda. With Title VII’s rules and enforcement in flux, employers should revisit every corner of their compliance program—policies, job postings, promotion and discipline files, RIF plans, complaint procedures, and training materials—to ensure they withstand the next challenge. Zashin & Rich can conduct a top-to-bottom review, fortify weak spots, and guide decision-makers before a new lawsuit or EEOC charge.

*David P. Frantz (an Ohio State Bar Association Certified Specialist in Labor and Employment Law) and Stephen S. Zashin (Z&R’s Managing Partner) have extensive experience representing employers in discrimination, harassment, and other workplace enforcement matters. If you have questions about the changes occurring under Title VII, please contact David P. Frantz (dpf@zrlaw.com) or Stephen S. Zashin at (ssz@zrlaw.com) via email or by phone at 216.696.4441.

Texas Court Clears Path for Rollback of EEOC Gender Identity Guidance

By Ami J. Patel and Stephen S. Zashin*

On May 15, 2025, the U.S. District Court for the Northern District of Texas vacated portions of the EEOC’s Enforcement Guidance on Harassment in the Workplace, holding that the agency exceeded its statutory authority by interpreting Title VII’s prohibition on sex discrimination to include harassment based on gender identity. The court found that the EEOC's guidance was contrary to Title VII’s plain text by expanding the definition of “sex” to include “sexual orientation and gender identity” which is according to the court, “beyond the biological binary: male and female.” Next, the court found that the EEOC guidance “contravenes Title VII by defining discriminatory‘ harassment’ to include transgender bathroom, pronouns, and dress preferences. ”Therefore, the court found that the EEOC’s guidance went beyond summarizing existing law and instead “fundamentally expands Title VII to include harassment based on gender identity,” specifically by treating the denial of access to bathrooms aligned with a person’s gender identity, enforcement of dress codes inconsistent with gender identity, and the intentional use of names or pronouns inconsistent with a person’s gender identity as unlawful harassment. The court described the EEOC’s Guidance’s reliance and interpretation of Bostock v. Clayton County as a “misreading of Bostock.” (Note: Bostock is the case which held that terminating an employee for being homosexual or transgender violates Title VII’s prohibition on sex discrimination).

Following the court’s May 15, 2025 ruling, the EEOC announced that it could not rescind or revise the Guidance due to the Commission’s lack of quorum—a procedural issue that has persisted since the start of the new administration. In the meantime, the EEOC has labeled and shaded the vacated provisions on its website and is currently reviewing other materials for consistency with the court’s decision.

Employers should take note that while the vacated provisions no longer carry legal weight, the underlying issues remain active and contested. EEOC investigators and plaintiffs may continue to explore similar theories under other frameworks, and state or local laws may impose independent obligations related to sexual orientation or gender identity. While the exact contours of Title VII continue to grow hazy, Employers should continue to handle complaints involving gender identity thoughtfully, with an emphasis on consistency, documentation, and awareness of jurisdiction-specific requirements. Zashin & Rich will continue to monitor developments in Title VII enforcement and is available to assist with any questions regarding compliance or policy updates.

*Ami J. Patel (Z&R’s Practice Leader for Trade Secrets/Non-competes) and Stephen S. Zashin (Z&R’s Managing Partner) have extensive experience representing employers in discrimination, harassment, and other workplace enforcement matters. If you have questions about the changes occurring under Title VII, please contact Ami J. Patel (ajp@zrlaw.com) or Stephen S. Zashin at (ssz@zrlaw.com) via email or by phone at 216.696.4441.

Leveling the “Paying” Field: Cleveland Mandates Salary-Range Transparency and Bans Salary-History Inquiries

By Dylan C. Brown and Rose A. Hayden*

Employers with Cleveland-based staff should take note: the City of Cleveland (City) is joining Columbus, Cincinnati, and a growing roster of jurisdictions in imposing pay-transparency requirements. On April 28, 2025, the Cleveland City Council adopted Ordinance No. 104-2025, which adds Chapter 669, “Unlawful Discriminatory Salary Practices,” to the Cleveland Codified Ordinances. Mayor Justin Bibb signed the measure as an emergency ordinance, with hopes it will assist in closing the gender pay gap, and it will take effect in 180 days (October 25, 2025).

Key Requirements Under Ordinance No. 104-2025

The new ordinance applies to any private employer—whether organized for profit or not—who employs fifteen (15) or more people in the City. While the ordinance excludes any unit of local, state, or federal government, the City of Cleveland itself is not excluded. Those meeting the broad definition of employer must:

• Post a pay range. Every notification,advertisement, or formal posting that offers an opportunity to apply for employment in the City must display a salary range or scale.
• Refrain entirely from asking about prior pay. Employers can no longer inquire about the salary history of any applicant for employment.Employers are likewise barred from refusing to hire, disfavoring, or retaliating against an applicant for refusals to disclose their prior financial compensation.
• Avoid salary-based decisions. Employers cannot screen applicants based on their current or prior salary history, and they cannot rely solely on an applicant’s prior compensation when making hiring or pay determinations.
• Recognize the carve-outs. The ordinance’s requirements and prohibitions do not apply to:
• actions another federal, state, or local law expressly authorizes to rely on salary history;
• applicants seeking an internal transfer or promotion with their current employer;
• voluntary, unprompted disclosures of salary history by an applicant;
• incidental disclosure of salary history uncovered during verification or background checks (however employers may not rely solely on that information to set pay);
• rehires when the employer already possesses the applicant’s prior salary data;
• positions whose compensation is set through collective-bargaining procedures; and,
• federal, state, or local governmental employers—other than the City of Cleveland.

Questions about salary history do not cover objective productivity metrics—revenue, sales, or similar production data. Employers may still discuss an applicant’s compensation expectations, including unvested equity or deferred pay the applicant would forfeit, but they must not request, screen on, or rely solely upon the applicant’s salary history when hiring or setting pay.

Compliance Oversight & Penalties

For any alleged violation of the above requirements, applicants or employees will be able to file complaints with the City’s newly revived Fair Employment Wage Board (FEWB or Board) within 180 days of the alleged violation. FEWB first attempts conciliation. If an employer does not cure a violation within ninety days, FEWB may impose civil penalties of up to $1,000 for a first offense, $2,500 for a second offense, and $5,000 for each additional offense within a five-year window.The Board adjusts these amounts each year to match the inflation reflected in the consumer price index for all Urban Consumers (CPI-U), which is published by the Department of Labor. Employers may appeal adverse rulings to the City’s Director of Finance and then to the Board of Zoning Appeals.

Next Steps for Cleveland Employers

Cleveland’s Ordinance arrives amid a national surge in pay-transparency laws—already on the books in California, Colorado, Illinois, New York, Washington, Columbus, Cincinnati, Toledo, and other jurisdictions. Council sponsors cited data from Columbus and Cincinnati showing post-enactment wage gains for women and emphasized the ordinance’s role in closing persistent pay gaps. With momentum clearly on the side of transparency, Cleveland employers cannot assume this is a passing trend.

The six-month countdown to October 25, 2025, has started. Cleveland employers must audit every posting for a compliant salary range, strip salary-history inquiries from hiring materials, and train recruiters before applicants—and the City’s revived Fair Employment Wage Board—start watching. Noncompliance risks immediate complaints, escalating fines, and reputational damage. Navigating this patchwork of local and multistate rules can feel daunting, but the Employment & Labor team at Zashin & Rich has guided organizations of every size through similar transitions and stands ready to help you get compliant—and stay ahead of the next wave.

*Dylan C. Brown & Rose A. Hayden represent public and private employers in all facets of labor and employment law. For more information or assistance with Cleveland’s pay-transparency ordinance or other employment-law issues matters, contact Dylan (dcb@zrlaw.com) or Rose (rah@zrlaw.com) via email or by phone at 216.696.4441.

THE DIE HAS BEEN CAST ON DEI: EEOC & DOJ Issue new Technical Assistance Documents Targeting “DEI-Related” Discrimination

By Lauren M. Drabic and Dylan C. Brown*

Backlash against Diversity, Equity, and Inclusion (DEI) programs has risen in recent years. The Trump administration has made restricting DEI a clear priority, issuing multiple Executive Orders and memoranda targeting DEI programs in the federal government and striving to limit DEI in the private sector. Yesterday, the Equal Employment Opportunity Commission (EEOC) and Department of Justice also weighed in on DEI, issuing two joint technical assistance documents aimed at educating employees and employers about unlawful discrimination related to DEI in the workplace.

The first document (available here), entitled “What to Do if You Experience Discrimination Related to DEI at Work,” is a one-page overview. It states, “DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s race, sex, or another protected characteristic.” The document advises that DEI initiatives may lead to unlawful disparate treatment if an employer takes “an employment action motivated (in whole or in part) by” an individual’s protected class, including as to: “hiring, firing, promotion, demotion, compensation, fringe benefits, exclusion form training, exclusion from mentoring or sponsorship programs, exclusion from fellowships, [and] selection for interviews (including placement on candidate slates).” The guidance also advises that employers are prohibited from “limiting, segregating, and classifying" employees based on protected characteristics “in a way that affects their status or deprives them of employment opportunities,” and that, “[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim.” It emphasizes that “Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes,” and urges affected employees to promptly contact the EEOC due to “strict time limits for filing a charge.”

The second document (available here), entitled “What You Should Know About DEI-Related Discrimination at Work,” is structured as a detailed question-and-answer guide that provides clarity on how DEI programs and initiatives might conflict with Title VII. Here, the EEOC states its position that there is “no such thing as ‘reverse ’discrimination,” and advises that the EEOC will apply “the same standard of proof” to all claims regardless of an individual’s race or other protected status. It further states that employers cannot defend discriminatory practices by citing business interests in diversity or client preferences, as Title VII explicitly rejects a “business necessity” defense to intentional discrimination. Additionally, it states that employers may violate Title VII by segregating employees during DEI training or restricting workplace opportunities based on protected traits. These ideas extend beyond employees to cover applicants, interns, apprentices, and participants in training programs.

Notably, these guidance documents do not create new laws. Rather, they serve as guidance about rights as they relate to DEI based on the current state of the law under Title VII, EEOC regulations, and Supreme Court precedent.

Does This Mean DEI Programs Are Now Illegal?

The short answer is no. As long as an employer’s DEI program complies with Title VII and other federal and state laws prohibiting discrimination, it remains lawful. As was the case before the issuance of these assistance documents and President Trump’s Executive Orders, employers cannot discriminate against applicants or employees based on their race, sex, national origin, age, disability, or other protected class – regardless of whether the employees are in the majority or minority of their protected class. This means that any DEI program or policy that has the purpose or effect of giving preferential treatment to employees in hiring, training, or other employment decisions is unlawful under Title VII. For example, DEI programs that require employers to meet certain hiring quotas or to consider an employee’s race, sex, or other membership in a protected class in employment decisions is unlawful. However, DEI policies that simply aim to expand opportunities to create a more diverse workforce, implement policies and procedures that apply equitably to all employees, and foster an environment of inclusion do not violate the law.

What Should Employers Do Now?

Many employers remain committed to DEI as part of their core values. Maintaining a DEI program may open employers to potential exposure for claims of discrimination by employees/applicants if they believe the policy resulted in adverse employment practices against them. However, such programs are not inherently unlawful, and there are steps that employers who wish to maintain these programs can take to decrease legal risk. For example, employers should ensure that their DEI programs do not have the purpose or effect of giving preferential treatment to candidates or employees who are members of acertain protected class when it comes to making employment decisions. Employers should also be mindful about focusing on all aspects of DEI, including emphasizing the importance of “equity” and “inclusion” in addition to “diversity.” As it relates to diversity, rather than aiming for diversity in and of itself as an end result, employers should focus on removing barriers and increasing opportunities for diverse candidates. In addition, employers should ensure any training, educational programming, resource groups, and other DEI-related activities are inclusive and not restricted to members of a certain group.

Zashin & Rich will continue monitoring DEI developments and can assist employers with strategic guidance on moving forward with DEI questions or concerns.

*Lauren M. Drabic has years of experience representing employers in all areas of employment and labor law. She regularly defends employers against claims of discrimination and retaliation in federal and state court and before administrative agencies and advise employers, including on DEI policies. Dylan C. Brown represents public and private employers in all facets of labor and employment law. For assistance in navigating the evolving landscape surrounding DEI programs, compliance with Title VII, and anti-discrimination laws at both the federal and state levels, contact Lauren M. Drabic (lmd@zrlaw.com) or Dylan C. Brown (dcb@zrlaw.com) via email or by phone at 216.696.4441.

A Change of Course? FTC Requests Abeyance in Non-Compete Rule Appeals

By Ami J. Patel and Stephen S. Zashin*

As mentioned in our previous Alerts, the Federal Trade Commission issued a purported Rule banning employers from enforcing non-competes against “workers,” with limited exceptions. The Rule was set to go into effect on September 4, 2024. However, it faced immediate legal challenges. On August 14, 2024, the U.S. District Court for the Middle District of Florida granted a preliminary injunction blocking enforcement against a single employer. Shortly after, on August 20, 2024, the U.S. District Court for the Northern District of Texas set aside the Rule nationwide, holding that the FTC lacked statutory authority. The FTC appealed both rulings.

The FTC Rule’s next major legal challenge is coming from within the FTC itself. On January 20, 2025, President Trump appointed Andrew Ferguson as the new FTC Chairman. Ferguson, who previously voted against the Rule while serving as a commissioner, has consistently questioned the agency’s authority to implement such a sweeping restriction. Words have now become action, as on March 7, 2025, the FTC requested a 120-day abeyance in the Fifth and Eleventh Circuits to “reconsider its defense of the challenged rule.” And while the Eleventh Circuit has yet to act, on March 12, the Fifth Circuit granted the FTC’s motion.

The abeyance motions cite the change in administration and Ferguson’s view that “the Commission . . . basically needs to decide whether it’s a good idea [and] it’s in the public interest to continue defending this rule. . . . I’m going to be presenting at some point” to “my colleagues the decision about whether to continue defending this Rule.” The likely outcome of Ferguson’s decision is perhaps foreshadowed in his dissenting statement when the Rule was first adopted:

“Whatever the Final Rule’s wisdom as a matter of public policy, it is unlawful. Congress has not authorized us to issue it. The Constitution forbids it. And it violates the basic requirements of the Administrative Procedure Act.”

Although many anticipate the FTC will eventually retract the rule outright, employers should remain vigilant, as the legal landscape surrounding non-competes continues to evolve at the state-level. States such as California, North Dakota, Oklahoma, and Minnesota have enacted bans on non-compete agreements. In New York, a proposed ban was vetoed by Governor Kathy Hochul in December 2023, though revised legislation may be introduced in the future. Similarly, Ohio is considering a bipartisan bill, Senate Bill 11, introduced on January 22, 2025, aiming to prohibit employers from entering into non-compete agreements with workers. As legal uncertainty persists, employers should take the time now to review their restrictive covenants for compliance with state laws and ensure their agreements are narrowly tailored to protect their legitimate business interests.

Zashin & Rich will continue monitoring the FTC’s actions under this new administration and stands ready to assist employers with strategic guidance on the agency’s rule and evolving state-level non-compete laws.

*Ami J. Patel is Z&R’s Practice Leader for Trade Secrets/Non-competes. She works extensively in trade secret and restrictive covenant litigation. Stephen S. Zashin is Z&R’s Managing Partner and also has worked extensively representing clients in trade secret and restrictive covenant litigation. For more information on matters concerning the FTC Rule or non-compete agreements generally, contact Ami J. Patel (ajp@zrlaw.com) or Stephen S. Zashin (ssz@zrlaw.com) via email or by phone at 216.696.4441.

Ohio’s Senate Bill 11 is Aiming to Ban Non-Competes

By Ami J. Patel and Stephen S. Zashin*

Although the Federal Trade Commission’s proposed rule banning non-compete agreements remains stuck in political limbo, states have, in recent years, begun passing or strengthening laws which ban or restrict these clauses. Now Ohio may soon follow suit, as its Senate is considering a total ban on non-compete agreements.

The Bill as Introduced

Senate Bill 11 was introduced by Ohio Senators Louis W. Blessing, III (R) and William P. DeMore (D) on January 22, 2025. Its proposed language prohibits employers from requiring or enforcing any agreement that restricts or penalizes “workers” (defined broadly to include employees, independent contractors, interns, and volunteers) for seeking or accepting new employment or operating a business after their employment ends. This includes agreements that:

• Prevent workers from working for another employer for a specific period, within a certain geographic area, or in a role similar to their previous position.
• Require workers to pay lost profits, lost goodwill, or liquidated damages if they terminate the employment relationship.
• Impose a fee or cost—such as a replacement hire fee, retraining fee, or reimbursement for immigration or visa-related costs—when workers choose to leave.
• Demand reimbursement for expenses (e.g., training, orientation, or evaluation) that were intended to provide or improve the worker’s skills during employment.

Notably, Senate Bill 11 includes no exception related to the sale of a business.

Additionally, the proposed Bill voids any agreement entered into, modified, or extended on or after its effective date which requires a worker who primarily resides and does business in Ohio to adjudicate claims outside Ohio or deprives them of any of the State’s substantive legal protections. However, the Bill does provide an exception for this if, at the time of negotiation, the worker is independently represented by legal counsel (not chosen or paid by the employer) and the worker personally designates the venue or forum for any dispute or the governing law.

In terms of penalties, Senate Bill 11 permits workers or prospective workers to bring a civil action against an employer for any violation, with the possibility of recovering costs and reasonable attorney’s fees, actual damages, punitive damages up to five thousand dollars, and injunctive relief. A worker or prospective worker may also file a complaint with the attorney general or the director of commerce. If the attorney general or director investigates and determines that a violation likely occurred, the attorney general may bring an action on behalf of the worker or prospective worker, and if successful, the court must award the same remedies to the attorney general.

As of this Article’s writing, Senate Bill 11 has been referred to the Ohio Senate’s Judiciary Committee, where it will go through debate and amendment. The first hearing on the Bill is scheduled for February 12, 2025. Anyone looking to testify before the Committee in regard to the Bill should begin that process now.

What Now for Employers

If the Bill is enacted, Ohio will join the growing group of states that have effectively banned non-compete agreements, with Minnesota being the most recent to do so in 2023. The Bill’s current language is notably strict, lacking any salary thresholds and containing no provision for grandfathering existing agreements. Its prohibition on “enforcement” makes clear that any previously signed non-competes would be rendered unenforceable once the legislation takes effect.

While the Bill moves through the legislative process, employers should remain vigilant and start reviewing their existing agreements in preparation for what may be a sweeping overhaul of restrictive covenants in Ohio. If the Bill becomes law, any attempt to enforce a non-compete once it takes effect will result in significant legal and financial consequences. As a result, employers will likely need to invest substantial effort in devising new ways to protect their business interests, trade secrets, and client relationships without relying on non-compete restrictions. It is critical to consult legal counsel now to evaluate existing contracts, explore alternative protective measures, and develop contingency plans in anticipation of Senate Bill 11’s potential enactment.

Zashin & Rich will continue monitoring Senate Bill 11 as it progresses and stands ready to assist employers with strategic guidance and compliance.

*Ami Patel is Z&R’s Practice Leader for Trade Secrets/Non-competes. She works extensively in trade secret and restrictive covenant litigation. Stephen Zashin is Z&R’s Managing Partner and also has worked extensively representing clients in trade secret and restrictive covenant litigation. Ami and Stephen have brought numerous trade secret cases to verdict. For more information on matters concerning Senate Bill 11 or non-compete agreements generally, contact Ami J. Patel (ajp@zrlaw.com) or Stephen S. Zashin (ssz@zrlaw.com) via email or by phone at 216.696.4441.

Legislative Update: New Legal Requirements and Protections for Employers

By Ken Hurley*

In January 2025, Governor Mike DeWine signed more than two dozen bills into law. These bills spanned a wide array of topics, from changes to Ohio’s Public Records Law to updating penalties for certain criminal offenses. Of these newly enacted laws, employers may be particularly interested in two specific items.

The Paystub Protection Act

House Bill 106, dubbed the Paystub Protection Act, enacts Section 4113.14 of the Ohio Revised Code. The Act requires employers to provide its employees with a statement of the employee’s wages and deductions for each pay period. Those statements must include the employee’s name and address, the employer’s name, the total gross wages and net wages earned by the employee over that pay period, the amount and reason for each deduction from the employee’s wages, the dates of the pay period and payday, and, for hourly employees, the total number of hours worked during the pay period, the hourly wage for the employee, and any hours worked over 40 hours in a workweek. Violations of this act do not carry legal liability alone, but employers should nevertheless ensure that their payroll practices comply with the Act’s requirements.

The Uniform Public Expression Protection Act

Senate Bill 237, also known as the Uniform Public Expression Protection Act, enacts Chapter 2747 of the Ohio Revised Code. The new Chapter provides immunity from lawsuits based on a person’s constitutionally protected speech, assembly, association, and press on matters of public concern. Public employers should take special note of these new protections, as the law also applies to communications made in legislative, executive, or administrative proceedings. The extent of these protections is not yet known, and the outer limits of these protections will likely be the subject of litigation in the coming years. Employers may be able to invoke these protections in certain actions to receive an early dismissal of cases against them. While these protections do not apply to every claim asserted against an employer, the Act provides necessary safeguards against the abuse of the legal process.

*Ken Hurley represents public and private employers in all facets of labor and employment law. If you have questions about these changes to Ohio law or any employment or labor law questions, please contact Ken at kjh@zrlaw.com or (614) 224-4411.