Fourth Circuit Joins Sixth Circuit in Rejecting Contractually Shortened Filing Deadlines for Title VII and ADA Claims

By Stephen S. Zashin*

The Fourth Circuit Court of Appeals recently joined the Sixth Circuit in holding that employers cannot enforce contractual provisions that shorten the time employees have to bring claims under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”).

In Thomas v. EOTech, LLC, the Fourth Circuit reversed a lower court decision upholding a contractual provision requiring an employee to bring any employment-related claims—including termination, discrimination, and wage claims—within 180 days of the challenged event or action, even where federal law provided for a longer filing period. 169 F.4th 259 (4th Cir. 2026).

The Fourth Circuit explained that allowing employers to shorten statutory filing deadlines would undermine Congress’s “carefully integrated remedial scheme,” make the administrative remedy process more difficult for employees to navigate and could improperly influence how the Equal Employment Opportunity Commission (“EEOC”) prioritizes cases. Id. at 265-267.

However, the Fourth Circuit clarified that parties may still agree to shortened filing deadlines where there is no controlling statute to the contrary, provided that the shortened period is reasonable, and the agreement is not procured through fraud or duress. Id. at 269. The Fourth Circuit also distinguished its holding in Thomas from contractual provisions shortening the time-period to initiate arbitration, emphasizing that federal policy favors arbitration agreements. Id. at 267.

What Should Employers Do Now?

Employers—particularly those in the Fourth and Sixth Circuits—should review their employment agreements and other employment-related contracts for provisions that shorten filing deadlines for federal discrimination claims and revise accordingly.

Further, with both the Fourth and Sixth Circuits now aligned on this issue, multistate employers should consider adopting a uniform national policy that does not rely on contractual limitations periods for federal anti-discrimination claims, as other circuits may soon follow suit.

*Stephen Zashin, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters, including employment discrimination matters. If you have questions about employment agreements or any employment law questions, please contact Stephen at ssz@zrlaw.com or (216)696-4441.

EEOC Mandates End to Enforcement of Disparate Impact Claims

By Lauren M. Drabic*

As a latest example of its shift in enforcement priorities, according to an internal memo obtained by Bloomberg Law, the Equal Employment Opportunity Commission (“EEOC”) has directed its investigators to close all pending charges alleging disparate impact discrimination by September 30, 2025. This directive comes in response to President Trump’s April 23, 2025, Executive Order entitled “Restoring Equality of Opportunity and Meritocracy,” which directed all federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”

Unlike claims of disparate treatment, which involve allegations that an employer intentionally discriminated against an employee because of his or her race, sex, age, national origin, disability, or other protected characteristic, intent is irrelevant disparate impact claims. Instead, disparate impact claims challenge employment practices that appear neutral on their face, but that nonetheless adversely impact - i.e., disproportionately harm - individuals in a protected class. Under this theory, employers may be liable for discrimination if a facially neutral practice causes a significant, adverse effect on a protected group, unless the policy or practice is job-related and essential to business operations. Historically, employees have successfully challenged practices including pre-employment testing, height and weight requirements, physical strength tests, criminal background checks, and educational requirements when those practices did not relate to the requirements of the job and had no business necessity.

The current administration has targeted disparate impact liability as a hindrance on the ability of employers to make hiring and other employment decisions based on merit. As a result, of the EEOC’s directive, the agency will close out all charges of disparate impact discrimination by September 30, 2025. However, this will not fully extinguish these claims. Instead, individuals who have filed charges alleging only disparate impact discrimination will receive a Notice of Right to Sue letter, which will allow them to pursue their claims in court within a specified timeframe. This could lead to a short-term influx of disparate impact claims in federal court. For charges alleging both disparate impact and disparate treatment, the EEOC will proceed with its investigation but focus exclusively on the disparate treatment claims.

The EEOC’s memo marks the latest example of the current administration’s shift in priorities and the ever-changing landscape of Title VII (Z&R has highlighted other recent examples here and here). However, it does not change the state of the law. Disparate impact discrimination remains unlawful under both Title VII and Ohio’s anti-discrimination statutes. Z&R will continue to monitor developments and stands ready to assist employers with strategic guidance on all matters related to Title VII.

*Lauren M. Drabic is an OSBA-certified specialist in labor and employment law and has extensive experience representing employers in discrimination, harassment, and other workplace enforcement matters. If you have questions about the changes occurring under Title VII, contact Lauren M. Drabic (lmd@zrlaw.com) by email or at 216.696.4441.

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.

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.

Title VII Suits Involving Job Transfers – No Harm vs. Some Harm vs. Significant Harm – What is the Standard?

By Natalie M. Stevens and Kimana A. Bowen*

On April 17, 2024, in a unanimous decision, the U.S. Supreme Court ruled in Muldrow v. St. Louis that Title VII of the Civil Rights Act requires “some harm” in the job transfer context.

The Opinion

Background

The plaintiff alleged that the defendant employer “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment in violation of Title VII. Specifically, the plaintiff, a female Sergeant in the St. Louis Police Department, alleged she was transferred to another unit, and replaced by a male, and that while her rank and pay remained the same, her responsibilities, perks, and schedule did not.

The Eastern District of Missouri granted the defendant employer’s motion for summary judgment, and the Eighth Circuit affirmed the District Court’s decision holding that the plaintiff must, but could not in this case, prove that the transfer caused her a “materially significant disadvantage”; rather, the transfer only caused “minor” changes in her working conditions.
Muldrow v. City of St. Louis, 30 F.4th680, 688 (8th Cir. 2022).

Title VII Standard

Title VII provides that it is unlawful for a private employer or a state or local government “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-2(a)(1).

Several courts have interpreted the statute to require that a transfer subject an individual to “worse treatment” or “harm,” and that the harm be “significant.”

In Muldrow v. St. Louis, the Supreme Court held that the requirement that the harm be “significant” would be adding words to the statute that Congress enacted, holding:

To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. The transfer must have left the transferee worse off but not significantly so. The transferee does not need to establish an elevated threshold of harm. This would impose a new requirement on a Title VII claimant, so that the law as applied demands something more of them than the law as written.

No. 22-193, slip opinion, at p. 6.

What Now for Employers?

Employers should ensure that they have Equal Employment Opportunity and Anti-Discrimination policies and that any transfers are for legitimate, non-discriminatory and non-retaliatory reasons.

*Please contact ZR Team member Natalie M. Stevens (nms@zrlaw.com) or Kimana A. Bowen (kab@zrlaw.com) ^[1] if you have questions relating to the interplay of job transfers and Title VII.

^{[1] Presently barred in D.C. only.}