By unanimous decision, the US Supreme Court ruled that members of a majority group do not need to satisfy an additional hurdle for her case to proceed. The bipartisan Protecting Older Workers Against Discrimination legislation has been reintroduced in the Senate and House of Representatives. The Secretary of Labor testified on the priorities of the Department of Labor (DOL). The DOL announced that it will be expanding the issuing of opinion letters designed to assist with compliance with the laws that the DOL enforces.

Unanimous Supreme Court Issues Decision in Reverse Discrimination Case – The United States Supreme Court issued a unanimous ruling finding that a member of a majority group did not need to satisfy an additional hurdle in order to proceed with her case. In the case of Ames v. Ohio Department of Youth Services, which concerned the burden that plaintiffs need to meet to establish a prima facie case, Justice Ketanji Brown Jackson concluded that “By establishing the same protections for every individual—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

In this case, Marlean Ames, a heterosexual woman was hired by the Ohio Department of Youth Services and was eventually promoted to the position of program administrator. In 2019, she applied for a newly created management position, for which a lesbian was selected. Subsequently, she was removed from her program administrator position and demoted to a secretarial role resulting in a significant pay cut. The agency then hired a gay man to fill the program administrator position. Ames filed a lawsuit alleging a violation of Title VII of the Civil Rights Act of 1964 due to her sexual orientation. The District Court granted summary judgment to the Ohio Department of Youth Services, which was affirmed by the United States Court of Appeals for the Sixth Circuit. Both of these courts believed that to satisfy the prima facie burden of proof in a disparate treatment case, a plaintiff who is a member of a majority group, must also show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The Supreme Court agreed to review the case to resolve a split among the judicial circuits.

The Supreme Court believed that “Our case law thus makes clear that 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.” The Supreme Court noted that the Sixth Circuit developed a rule requiring majority group plaintiffs to satisfy an enhanced evidentiary standard in order to establish a prima facie case in a Title VII action. Justice Jackson concluded that “Title VII does not impose such a heightened standard on majority group plaintiffs.”

In response to the decision, Andrea Lucas, acting Chair of the Equal Employment Opportunity Commission (EEOC) released a statement applauding the Supreme Court for “unanimously confirming that Title VII of the Civil Rights Act of 1964 establishes the same protections for every individual – without regard to that individual’s membership in a minority or majority group.”

Protecting Older Workers Against Discrimination Act Reintroduced – Bipartisan legislation (H.R. 3522, S. 1820) has been reintroduced in the House and Senate. The Protecting Older Workers Against Discrimination Act (POWADA) according to the sponsors, “restores legal protections for older workers so they can hold employers accountable for age discrimination.”

Representative Robert Scott (D-VA), one of the sponsors of the bill, said this bipartisan bill  “would finally restore the legal rights of older workers by ensuring that the burdens of proof in age discrimination claims are treated in the same manner as other discrimination claims.” 

During the last session of Congress, the bill was approved by the House of Representatives but not considered by the Senate. The bills have been referred to the House Committee on Education and the Workforce and the Senate Committee on Health, Education, Labor, and Pensions.

Prior to the 2009 decision by the United States Supreme Court in the case of Gross v. FBL Financial Services, Inc., older workers could demonstrate a violation of the Age Discrimination in Employment Act of 1967 by showing that age was a motivating factor for the employer’s adverse action. In the Gross decision, the Supreme Court replaced the “mixed motive” standard with a requirement that plaintiffs prove “but-for” causation requiring a showing that age was the determining factor for the adverse employment decision. This legislation would provide that a complaining party only needs to produce evidence that an unlawful practice occurred and would not be required to demonstrate that age was the sole cause of a practice. The bill also would amend the anti-retaliation provisions in Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 to ensure that discrimination charges brought under these laws would also be considered based on the “mixed motive” standard.

Hearing Focused on Labor Department Priorities – The House Committee on Education and the Workforce held a hearing to discuss the priorities of the Department of Labor (DOL). Testifying at the hearing was Secretary of Labor Lori Chavez-DeRemer.  The Secretary expressed her commitment to maximize “opportunities for American workers with a smaller federal footprint, while safeguarding protections that are critical to the health and wellbeing of our workforce, like enforcement efforts, inspectors, and investigators.”

She focused her testimony on workforce development noting the proposed budget for next year, which needs congressional approval, would consolidate federal job training programs into a single Make America Skilled Again grant that would enable states and localities to “spend more time and money delivering high-quality training for their workers and less time complying with burdensome federal program requirements.” The proposed budget also would eliminate the Senior Community Service Employment Program and the Job Corps program, which the Secretary described as being “ineffective federal training interventions.”

Secretary Chavez-DeRemer stated that she is working to increase registered apprenticeships where almost 83,000 new apprentices registered in programs and over 900 new apprenticeship programs have joined the National Apprenticeship System. She testified that “Developing artificial intelligence (AI) oriented apprenticeships is also essential for preparing workers to meet labor market demands and technological challenges.”

DOL Launches Opinion Letter Program – The Department of Labor announced that it is expanding the issuing of opinion letters designed to provide compliance assistance. Deputy Secretary of Labor Keith Sonderling stated, “Opinion letters are an important tool in ensuring workers and businesses alike have access to clear, practical guidance.” Among the DOL agencies are the Wage and Hour Division that will continue to publish opinion letters and the Occupational Safety and Health Administration that will provide interpretation letters.

Opinion letters provide official interpretations about laws and are based on the factual circumstances presented by the requestors of the opinion letters. DOL has set up a new opinion letters site where past guidance is available and new opinion letter requests can be submitted. 

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.