Environmental Law Monitor: Seven County Infrastructure Coalition v. Eagle County: Understanding the Supreme Court’s Momentous Decision on NEPA [Podcast]
In the latest episode of the Bracewell Environmental Law Monitor, Ann Navaro joins hosts Daniel Pope and Taylor Stuart to discuss the implications of the Supreme Court’s ruling in Seven County Infrastructure Coalition v. Eagle County. They delve into the ruling’s clarifications on judicial deference and an agency’s obligations under NEPA. The trio also examine the potential impacts on infrastructure projects in light of this decision.
Episode Highlights
[01:44] The Evolution of NEPA Regulations: Daniel outlines key changes to NEPA regulation during the Trump and Biden administrations, including significant judicial trends.
[05:40] Case Background: Taylor summarizes the 88-mile railroad project at the center of the case and the core legal questions about NEPA’s scope. The central question was whether the Surface Transportation Board was required to consider downstream impacts of the project in its environmental review.
[08:22] Highlights From the Case: Ann, Daniel and Taylor discuss the Court’s focus on judicial deference, agency discretion and clarified limits to NEPA’s procedural scope. They talk through the various layers of the Court’s decision and explain how and why this decision is significant and momentous for NEPA.
[21:29] The Court Rulings Is a Reset for NEPA: As the Supreme Court attempts to provide additional clarity around NEPA, Ann believes the Court’s decision offers a reset for NEPA, ultimately reverting it back to its original intention.
[28:46] The Relevancy of Connected Actions: Ann and Taylor discuss how review of interrelated/connected actions will continue in light of the Seven County Infrastructure Coalition v. Eagle County decision. Ann explains that the Supreme Court has emphasized that interrelated actions are actions pending in front of the same agency.
[38:22] Closing Thoughts on NEPA’s Future: Taylor concludes with final thoughts and questions on the SCOTUS decision, including whether it will reduce litigation and delays.
Trump Security Plan Equals New Travel Ban
The Trump Administration announced a new travel ban impacting 19 countries earlier this week, effective Monday, June 9 at 12:01 a.m.
According to the Presidential Proclamation, the ban will suspend entry of nationals from a dozen countries based on their inadequate screening and security risks: Afghanistan, Myanmar (Burma), Chad, Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. Entry of nationals from seven other countries is partially restricted- limiting issuance of immigrant visas and B-1, B-2, B-1/B-2, F, M, and J nonimmigrant vias for nationals from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.
The proclamation applies only to citizens or nationals of the 19 designated countries who are outside the United States and do not possess a valid visa as of June 9, 2025. Entry restrictions detailed in the proclamation do not impact citizens or nationals of these designated countries who meet certain criteria, including those who:
Are lawful permanent residents (green card holders),
Are present inside the United States on June 9, 2025;
Those outside the United States on that date but holding a visa valid as of June 9, 2025; and
Dual nationals of a designated country traveling on a passport issued by a non-designated country, provided their U.S. visa is in the non-designated country’s passport and all other required documents are valid.
Additional exemptions include athletes participating in events such as the 2026 World Cup and the 2028 Olympics. The proclamation also allows for case-by-case exceptions, though it does not specify a process for applying for such exemptions. Perhaps the varying national interest exception processes consulates utilized during the first Trump administration will be implemented again.
Furthermore, the proclamation announced that visas issued before the proclamation’s effective date will remain valid.
The travel ban likely will face challenges in federal courts. On June 6, the U.S. District Court for the District of Massachusetts issued a temporary hold on the Trump Administration’s proclamation two days earlier that would’ve banned Harvard University from enrolling international students. Harvard quickly challenged that proclamation, stating that a ban on foreign students, which make up a quarter of the university’s enrollment, would cause “immediate and irreparable harm.”
What You Should Know
If you have employee nationals traveling outside of the U.S. from one of the 12 banned countries, you may want to arrange for their return soon as possible, but before June 9 since implementation at the airports could be unpredictable.
If you require business travelers who are from one of the banned or partially restricted countries who do not already have visas, they may be unable to enter.
Students or Exchange Visitors seeking entry for upcoming semesters or to resume work in OPT, who are nationals of the banned or partially restricted countries, who do not yet have valid visas, may be unable to enter.
As with any change in government policy, businesses who employ such nationals and visa holders alike may want to presume increased risk for travel by nationals from any of the banned or partially restricted countries. Nationals may be turned away, or delayed at entry while the ban is rolled out (even if they fall within one of the exceptions, and even if they seek entry prior to June 9).
Breaking—Supreme Court Unanimously Lowers Bar for “Reverse Discrimination” Claims: Ames v. Ohio Department of Youth Services Redefines Title VII Litigation
The U.S. Supreme Court issued a landmark, unanimous decision in Ames v. Ohio Department of Youth Services, 605 U.S. ___ (2025) on June 5, 2025, fundamentally altering the landscape for “reverse discrimination” claims under Title VII of the Civil Rights Act of 1964. The ruling eliminates the long-standing “background circumstances” requirement for majority-group plaintiffs, significantly lowering the threshold for such claims and signaling a new era of risk considerations for employers.
Case Background: A New Lens on Disparate Treatment
Petitioner Marlean Ames, a heterosexual woman, served in various roles at the Ohio Department of Youth Services since 2004. In 2019, Ames applied for a newly created management position but was passed over in favor of a lesbian woman. Shortly thereafter, Ames was demoted from her program administrator role, which was subsequently filled by a gay man. Ames brought suit under Title VII, alleging that her sexual orientation was the reason for both the denied promotion and a subsequent demotion.
Both the District Court and the Sixth Circuit Court of Appeals rejected Ames’s claims, applying the familiar framework for disparate treatment cases based on circumstantial evidence under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Critically, the lower courts required Ames—as a member of a “majority group”—to meet an additional evidentiary hurdle: she had to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Because Ames could not provide such evidence, her claims were dismissed at summary judgment.
The Supreme Court’s Decision: A Uniform Standard for All Plaintiffs
The Supreme Court, in a sweeping opinion authored by Justice Jackson, unequivocally rejected the “background circumstances” rule. The Court held that Title VII’s text protects “any individual” from discrimination based on race, color, religion, sex, or national origin—without regard to whether the plaintiff is a member of a majority or minority group. The Court emphasized that Congress did not authorize courts to impose special, heightened requirements on majority-group plaintiffs. Instead, all Title VII plaintiffs must be held to the same, “not onerous” prima facie standard articulated in McDonnell Douglas: showing that they applied for a position for which they were qualified, were rejected, and that the circumstances give rise to an inference of unlawful discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The Court’s opinion also criticized the proliferation of inflexible, judge-made evidentiary rules in employment discrimination litigation, warning that such doctrines distort the statutory text and create unnecessary confusion for litigants and courts alike. In a notable concurrence, Justice Thomas (joined by Justice Gorsuch) went further, questioning the continued utility of the McDonnell Douglas framework itself and highlighting the risks posed by judicially created doctrines that lack textual support.
Implications: A New Era for Reverse Discrimination Claims and Employer Risk
The Ames decision is a watershed moment for Title VII litigation. By eliminating the “background circumstances” requirement, the Court has lowered the bar for majority-group employees (e.g., white, male, heterosexual, or Christian plaintiffs) to bring discrimination claims. This change is likely to result in a uptick in so-called “reverse discrimination” lawsuits, particularly as the current administrative and regulatory climate, including recent policy shifts at the Equal Employment Opportunity Commission (“EEOC”), appears increasingly receptive to such claims.
Employers should anticipate heightened litigation risk from majority-group employees and should take immediate steps to review and, if necessary, revise their internal employment policies, training, and DEI (diversity, equity, and inclusion) initiatives. The Supreme Court’s decision underscores the need for employers to ensure that anti-discrimination practices are applied consistently and neutrally, regardless of the group status of the complainant. The concurring opinion’s pointed critique of DEI programs further signals that such initiatives may face additional scrutiny in the courts.
Key Takeaways for Employers and HR Professionals
Uniform Standard: All Title VII plaintiffs, regardless of majority or minority status, are now subject to the same prima facie standard under McDonnell Douglas.
Increased Litigation Risk: The lowered threshold is expected to encourage more majority-group employees to pursue “reverse discrimination” claims, increasing potential exposure for employers.
Scrutiny of DEI Initiatives: The decision, especially the concurring opinion, aligns with current Trump executive orders and places DEI programs under a sharper legal microscope, raising the stakes for compliance and risk management.
Policy Review Recommended: Employers should consult with counsel to conduct a privileged review of employment policies and DEI practices to ensure compliance with the new legal landscape.
Conclusion
Ames v. Ohio Department of Youth Services marks a pivotal shift in Title VII jurisprudence, opening the door to a broader array of discrimination claims and signaling a more skeptical judicial approach to judge-made evidentiary barriers and DEI initiatives. Employers should act now to assess their risk and ensure their practices are aligned with this new, more exacting standard.
Beltway Buzz, June 6, 2025
The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
Senate Republicans Want Legislative Priorities Passed in June. All eyes are on the U.S. Congress this week as Republicans in the U.S. Senate roll up their sleeves and get down to working on their version of the One Big Beautiful Bill Act. President Donald Trump has stated that he wants to sign the bill by July 4, which gives Senate Republicans roughly four weeks to pass the bill—an ambitious timetable. As a reminder, because Republicans are using the reconciliation legislative process, they can pass this bill on their own in the Senate, without the need to convince Democrats to vote in favor of the bill.
Buzz readers know that we are watching closely the status of the “no tax on tips and overtime” provisions in the House-passed reconciliation bill, particularly since the Senate passed the No Tax on Tips Act (S.129). Already at least one Republican senator has expressed concern over the U.S. House of Representatives version’s language on tips, because it would benefit certain workers over others, even when they earn the same amount of money. The Buzz is also watching to see if the Regulations from the Executive in Need of Scrutiny (REINS) Act, which was included in the House bill, will survive the reconciliation process in the Senate. The REINS Act is, in a way, the opposite of the Congressional Review Act (CRA), which we’ve often examined: while the CRA allows Congress to disapprove regulations after they’ve been finalized, the REINS Act would require Congress to affirmatively approve of regulations before they can be finalized.
SCOTUS Rejects Heightened Evidentiary Standard for Majority Group Plaintiffs. In a unanimous decision this week, the Supreme Court of the United States ruled that a plaintiff from a majority group does not have to demonstrate additional “‘background circumstances” at the initial phase of his or her case. Aaron Warshaw has the details, including how the decision may play out amidst the administration’s current scrutiny of diversity, equity, and inclusion programs.
President Trump Issues Travel Ban. On June 4, 2025, President Trump issued a proclamation entitled, “Restricting The Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats.” Effective June 9, 2025, the proclamation “fully restrict[s] and limit[s] the entry of nationals” from the following twelve countries:
Afghanistan,
Burma,
Chad,
Republic of the Congo,
Equatorial Guinea,
Eritrea,
Haiti,
Iran,
Libya,
Somalia,
Sudan, and
Yemen.
The proclamation further institutes partial limitations and restrictions on the entry of nationals from the following seven countries:
Burundi,
Cuba,
Laos,
Sierra Leone,
Togo,
Turkmenistan, and
Venezuela.
These restrictions apply to both immigrant and nonimmigrant visas and “only to foreign nationals of the designated countries who:
are outside the United States on the applicable effective date of this proclamation; and
do not have a valid visa on the applicable effective date of this proclamation.”
A variety of exceptions are provided, including for lawful permanent residents of the United States, international athletes, immediate family immigrant visas, adoptions, and others. Whitney Brownlow and Ashley Urquijo have the details.
SCOTUS Allows CHNV Rescission to Proceed. On May 30, 2025, the Supreme Court of the United States stayed a ruling by the U.S. District Court for the District of Massachusetts to block the Trump administration’s rescission of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) humanitarian parole program. The ruling removes parole protections and work authorization for approximately 532,000 individuals while the legal challenge to the administration’s termination decision continues to work its way through the courts. In dissent, Justice Ketanji Brown Jackson (who was joined by Justice Sonia Sotomayor) wrote that the Court’s ruling “undervalues the devastating consequences of allowing the Government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending.” Whitney Brownlow and Derek J. Maka have the details. Evan B. Gordon and Daniel J. Ruemenapp wrote previously about what the removal of work authorization for covered individuals means for employers.
DOL Launches New Opinion Letter Landing Page. This week the U.S. Department of Labor (DOL) announced the launch of its opinion letter program. The program will provide compliance assistance to stakeholders with questions regarding federal laws overseen by the Wage and Hour Division, the Occupational Safety and Health Administration, the Employee Benefits Security Administration, the Veterans’ Employment and Training Service, and the Mine Safety and Health Administration (which will also “provide compliance assistance resources through its new MSHA Information Hub, a centralized platform offering guidance, regulatory updates, training materials and technical support”). According to the announcement,
Opinion letters provide official written interpretations from the department’s enforcement agencies, explaining how laws apply to specific factual circumstances presented by individuals or organizations. By addressing real-world questions, they promote clarity, consistency, and transparency in the application of federal labor standards.
The DOL’s new opinion letter landing page is here. Opinion letters were a longstanding practice of the agency until the Obama administration, which replaced them with “Administrator’s Interpretations.” The program was resuscitated during President Trump’s first administration but used sparingly during the Biden administration. John D. Surma has the details on Deputy Secretary of Labor Keith Sonderling’s announcement of the program.
Budget Time! It is the time of year when the administration offers its budget to Congress in anticipation of the 2026 fiscal year (FY), which commences on October 1, 2026. Agency budget justifications are aspirational in nature, but can help guide Congress towards some final numbers, particularly in the current political climate, where Republicans control Congress and the White House.
Department of Labor. The DOL is requesting a FY 2026 budget of $8.6 billion, about $5 billion less than enacted in the current fiscal year. The budget proposes to completely shut down the remaining functions of the Office of Federal Contract Compliance Programs, transferring enforcement of the Vietnam Era Veterans’ Readjustment Assistance Act to Veterans’ Employment and Training Service, and enforcement of Section 503 of the Rehabilitation Act of 1973 to the U.S. Equal Employment Opportunity Commission (EEOC). T. Scott Kelly, Christopher J. Near, and Zachary V. Zagger have the details on the Trump administration’s proposal to eliminate OFCCP.
EEOC. The Commission is requesting $435 million in FY 2026, about $20 million less than enacted in the current fiscal year. As part of the “Chair’s Message” section of the budget submission, Acting Chair Andrea Lucas makes the EEOC’s FY 2026 priorities clear:
the agency substantively will focus on relentlessly attacking all forms of race discrimination, including rooting out unlawful race discrimination arising from DEI programs, policies, and practices; protecting American workers from unlawful national origin discrimination involving preferences for foreign workers; defending women’s sex-based rights at work; and supporting religious liberty by protecting workers from religious bias and harassment and protecting their rights to religious accommodations at work.
National Labor Relations Board. The Board is requesting $285.2 million in FY 2026, about $14 million below the FY 2025 enacted budget of $299.2 million. The anticipated savings largely come from “staff attrition” of ninety-nine employees, which would bring the NLRB staff to 1,152.
Remember that this is all just the administration’s ask. Ultimately, Congress retains the power of the purse and will set agency spending levels (and would have to authorize the transfer of Section 503 responsibility to the EEOC).
“Our Next Item Up for Bid … IRS Commissioner.” The Senate Committee on Finance has advanced the nomination of Billy Long to be Internal Revenue Service (IRS) commissioner. Long, a Republican, represented Missouri’s 7th congressional district from 2011 to 2023. Prior to his career in politics, Long was an auctioneer and owned his own auction company. He was no slouch, either. Long was named “Best Auctioneer in the Ozarks” for seven years in a row and is a member of the National Auctioneers Association Hall of Fame. During a congressional hearing in 2018, Long famously employed a mock auction chant to drown out a protestor until she was escorted out. Assuming he gets confirmed by the Senate, maybe Long can use his fast-talking skills to speed up those IRS audits.
SCOTUS Declines to Decide Fate of Classes with Uninjured Members: 8-1 Decision in LabCorp Leaves Unresolved Whether Rule 23 Allows Certification for a Class Containing Members Who Lack Standing
The United States Supreme Court, in an 8-1 decision on June 5, 2025, dismissed the highly anticipated case of Laboratory Corporation of America Holdings v. Davis as “improvidently granted.” Laboratory Corporation of America Holdings, dba Labcorp, v. Luke Davis, et al., No. 22-55873. The decision, or lack thereof, sidesteps a critical question for class action litigation: whether a damages class can be certified under Federal Rule of Civil Procedure 23 when it includes individuals who have not suffered any actual injury.
LabCorp was challenging a Ninth Circuit decision that allowed the certification of a massive class of visually impaired individuals under California’s Unruh Civil Rights Act. Cal. Civ. Code. § 51. The suit alleged LabCorp’s check-in kiosks were inaccessible, triggering statutory damages of $4,000 per violation. With a class size potentially in the hundreds of thousands, the exposure was astronomical—a classic case of “bet the company” litigation.
Background of the Case
LabCorp is a clinical diagnostic laboratory that tests samples collected from patients at its patient service centers. In a suit filed before the U.S. District Court for the Central District of California, a group of legally blind and visually impaired individuals sued LabCorp under the Americans with Disabilities Act (ADA) and the Unruh Civil Rights Act, alleging that the company’s self-service check-in kiosks were inaccessible. The District Court certified a damages class consisted of “[a]ll legally blind individuals in California who visited a LabCorp patient service center in California during the applicable limitations period and were denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations due to LabCorp’s failure to make its e-check-in kiosks accessible to legally blind individuals.”
LabCorp filed a petition under Rule 23(f)’s interlocutory appellate procedure, contending that the class encompassed uninjured individuals.
While LabCorp’s petition was pending, the District Court clarified the class definition, explaining that the class included “[a]ll legally blind individuals who . . . , due to their disability, were unable to use” LabCorp kiosks.
Subsequently, the Ninth Circuit granted LabCorp’s Rule 23(f) petition. LabCorp’s key argument was that the class was fatally overly broad and swept in countless individuals who may have never intended to use a kiosk in the first place, and thus suffered no actual injury. The Ninth Circuit relying on its opinion in Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022), held that a class can be certified even if it includes “more than a de minimis number of uninjured class members.”
Supreme Court Proceedings
The Supreme Court initially granted certiorari to address the question of “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” However, after oral arguments, the Court dismissed the case in a one-line order, without ruling on the merits, stating that the writ of certiorari was “improvidently granted.”
Justice Kavanaugh’s Dissent
Justice Kavanaugh dissented from the dismissal, expressing that the Court should have addressed the merits. He argued (correctly) that certifying a damages class containing uninjured members is inconsistent with Rule 23, which requires that common questions of law or fact predominate in class actions. Notably, Kavanaugh also emphasized the risk from “[c]lasses that are overinflated with uninjured members rais[ing] the stakes for businesses that are the targets of class actions.” He went on to underscore that certifying such classes “can coerce businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial.”
“Classes that are overinflated with uninjured members raise the stakes for businesses that are the targets of class actions.”
The Circuit Split
This decision effectively leaves undisturbed the split in authorities that has existed since the Supreme Court’s decision in TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). In TransUnion, while the Supreme Court held that “[e]very class member must have Article III standing in order to recover individual damages,” it did not decide when a class member’s standing must be established and whether a class can be certified if it contains uninjured class members. Subsequently, while some courts have denied class certification if there are uninjured class members, other courts have found it appropriate to address a class member’s standing after certification.
LabCorp, in its petition for certiorari, addressed the “three camps” of opinions:
Circuits holds that a class may not be certified where it includes members who have suffered no Article III injury (the Second Circuit, Eighth Circuit, and some courts in the Fifth and Sixth Circuits);
Circuits that have strictly applied Rule 23(b)(3)’s predominance requirement to reject classes that contain more than a de minimis number of uninjured members (the D.C. Circuit and the First Circuit); and
Circuits that have held that the presence of uninjured class members should not ordinarily prevent certification (the Ninth Circuit, Seventh Circuit, and Eleventh Circuit).
In light of the majority opinion, this question remains unresolved.
A Final Rule Bites the Dust, Part II: FDA Gives up on Regulating LDTs as Medical Devices
As the song goes, the Food and Drug Administration’s (“FDA’s”) 2024 Final Rule regulating laboratory-developed tests (“LDTs”) as medical devices (“Final Rule”), is not merely dead—it’s really most sincerely dead.
Perhaps not for good, but for the foreseeable future, at least.
The FDA has let the clock run out on the 60-day time period to appeal the March 31, 2025, decision by the U.S. District Court for the Eastern District of Texas concluding that: 1) the FDA overstepped its authority, and 2) the LDT Final Rule of May 6, 2024, was unlawful. As we explained at that time, the Final Rule would have required virtually all clinical laboratories offering their own LDTs to comply with FDA expectations for medical device manufacturers in phases over a four-year period—with the first compliance deadlines set for May 2025.
The March 2025 opinion by Judge Sean D. Jordan vacated the controversial Final Rule a little more than a month before the first implementation deadlines were to take effect, and remanded the issue back to the FDA.
Now, absent an appeal, it is not likely that the last remaining option to salvage the Final Rule—i.e., congressional action—will happen in the current political climate.
As we explained at the time of its release, the 2024 Final Rule followed more than a decade of uncertainty as to the course of action the agency would take with respect to LDTs. When it came, the Final Rule escaped potential rollback by a future presidential administration as a “midnight rule” under the Congressional Review Act—yet threw clinical labs into nearly a year o
As we anticipated, the Supreme Court’s June 28, 2024, decision in Loper Bright Enterprises v. Raimondo—ending Chevron deference to agencies when interpreting ambiguous statutes—made it easier for entities to challenge both FDA authority and the validity of the agency’s Final Rule. The American Clinical Laboratory Association and the Association for Molecular Pathology filed suit in federal district court in Texas on May 29, 2024, and August 19, 2024, respectively.
But perhaps no one could have anticipated the extent to which the FDA itself has changed in the lifespan of the LDT Final Rule—with unprecedented staff cutbacks, changing policies and priorities, and a continued emphasis on deregulation at the federal level that is not likely to change until a future presidential administration rolls in. States, meanwhile, continue to regulate LDTs to some extent, and the FDA continues to have authority to regulate certain components of LDTs (such as reagents and collection devices), as well as in vitro diagnostics. While this particular chapter on LDTs has drawn to a close, we aren’t going anywhere—and we will continue to advise our lab clients on state as well as remaining federal compliance considerations.
Attorney Ann W. Parks contributed to this article
Title VII Lawsuit in Utah Federal District Court Challenges Employee’s Firing After Making Online Posts
An in-house attorney recently sued his former employer in a Utah federal district court for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, alleging he was unlawfully fired after posting social media remarks criticizing gender-affirming care for transgender people and opposing a Utah nonprofit organization that advocates for LGBTQ+ rights.
Quick Hits
A former employee in Utah recently brought a federal lawsuit, claiming he was fired for criticizing on social media a LGBTQ+ rights nonprofit that partnered with his employer.
The gay Christian employee is alleging sex, sexual orientation, and religious discrimination in violation of Title VII of the Civil Rights Act of 1964.
The case is in the U.S. District Court for the District of Utah.
On May 22, 2025, a former employee for a Utah-based software company sued the company for discrimination and retaliation after he was fired a few months after he posted comments on social media criticizing gender-affirming care for transgender people and critical of Equality Utah’s policy positions. Equality Utah is a local nonprofit that supports LGBTQ+ rights.
The plaintiff, a gay Christian man, worked as in-house counsel. He alleged the software company discriminated against him based on his religion, sex, and sexual orientation, and retaliated against him for invoking nondiscrimination protections.
In February 2023, the plaintiff posted remarks on his social media account opposing Equality Utah’s positions regarding gender-affirming care for transgender children. The software company had earned a business equality leader certification from Equality Utah and partnered with the organization for trainings on diversity, equity, and inclusion (DEI). A leader at Equality Utah complained several times to the plaintiff’s employer about his social media comments on the plaintiff’s personal social media account and his account as president of the Utah Log Cabin Republicans.
In October 2023, the company fired the plaintiff, citing poor performance.
The plaintiff’s federal complaint alleges sex discrimination and religious discrimination under Title VII of the Civil Rights Act of 1964, but did not assert a claim under Utah’s Antidiscrimination Act.
Utah’s Antidiscrimination Act prohibits Utah employers from taking adverse employment action against employees for “lawful expression or expressive activity outside of the workplace regarding the [employee’s] religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.” The state law permits workers to express “religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way.”
The case raises questions about what employers can include in their social media policies and how such policies may be enforced. While the free speech rights in the U.S. Constitution do not give private employees free rein to say whatever they want on their personal social media accounts, other laws such as Title VII and their state law equivalents may provide protection. In some circumstances, employers may lawfully discipline or fire employees for disparaging the employer or using offensive language on social media, particularly if the post includes references to the company name or logo.
But at the same time, under the National Labor Relations Act (NLRA), private employees have the right to discuss wages and the terms and conditions of employment, which may include religious discrimination or sex discrimination in the workplace. This case is also a good reminder that even within a protected category, there may be conflict in viewpoints, and employers may want to be prepared to respond to such disagreements.
Next Steps
Employers may want to develop and distribute to employees a well-crafted social media policy that respects employees’ legal rights, including protections under state and federal law, and that also maintains workplace standards and protects business interests.
Employers that are developing or updating their social media policies may want to consider the following key principles and tips:
Including in the written policy specific examples of acceptable and unacceptable commentary and conduct.
Making it clear that employees must not use the company’s name, branding, or position themselves as speaking on behalf of the company without authorization.
Applying and enforcing the social media policy consistently with all employees in order to prevent claims of discrimination or retaliation.
Periodically reminding employees and managers about the social media policy.
Training supervisors and managers about what constitutes protected activity under the NLRA.
In Utah, taking care not to take adverse action against employees for lawful expression outside the workplace involving religious, political, or personal convictions, including matters such as marriage, family, or sexuality, unless the expression directly conflicts with the employer’s essential, business-related interests.
Supreme Court Eases Burden Of Proof In “Reverse Discrimination” Claims (US)
On June 5, 2025, the United States Supreme Court issued its opinion in Ames v. Ohio Department of Youth Services, No. 23-1039, reviving a lawsuit brought by a heterosexual female employee who alleged she was discriminated against by her employer in favor of less qualified gay candidates. The decision conclusively establishes that the evidentiary burden in so-called “reverse discrimination” cases is identical as in cases brought by members of minority race, gender, and sexual orientation groups.
Marlean Ames worked for the Ohio Department of Youth Services for 15 years, rising from executive secretary to Program Administrator. In 2019, Ms. Ames applied and interviewed for a newly created management position in the agency’s Office of Quality and Improvement, but the Department hired a lesbian instead. A few days later, Ms. Ames received word that, not only was she not getting the promotion she hoped for, but she was also being demoted to her original secretarial position and stripped of the pay raise that had accompanied her promotion. The agency then filled Ms. Ames vacant former role with a newly hired candidate, a gay man.
Ms. Ames sued the agency under Title VII, alleging she was denied the promotion and demoted because of her sexual orientation—heterosexual—but she lost at the trial court and again at the Sixth Circuit Court of Appeals. The federal appellate court concluded that Ms. Ames failed to meet her prima facie burden of proving discrimination because she had not pointed to “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” The Sixth Circuit reasoned that, as a straight woman, Ms. Ames was required to prove additional facts to establish reverse discriminatory bias “in addition to the usual ones for establishing a prima facie case.” Like the Sixth Circuit, the Seventh, Eighth, Tenth, and D.C. Circuits also imposed a heightened evidentiary burden on majority-group plaintiffs as compared to minority-group plaintiffs at the prima facie stage; other Circuits did not. The Supreme Court granted review to resolve the Circuit split.
Writing for a unanimous court, Justice Ketanji Brown Jackson opined that the Sixth Circuit’s “additional ‘background circumstances’ requirement is not consistent with Title VII’s text or our case law construing the statute.” Noting that Title VII makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin,” the Court concluded that Title VII’s protections apply to every individual without regard to that individual’s membership in a minority or majority group. In other words, “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”
The Court reminds employers and courts alike that a plaintiff’s burden at the prima facie stage is neither “rigid, mechanized, or ritualistic.” Having adduced sufficient evidence that she was qualified for the positions she held and sought and that she was treated less favorably than others not sharing her sexual orientation, Ms. Ames satisfied her modest prima facie burden. At that stage, the trial court should have considered whether her employer could credibly rebut her allegations of discrimination with evidence of a legitimate, non-prextual, non-discriminatory reason for its employment decisions. As the lower courts never moved past the prima facie analysis and applied the wrong evidentiary burden even at that early stage, the Court remanded the case for further consideration.
The takeaway for employers is that Ames levels the playing field for majority-group and minority-group Title VII litigants. Employers should not dismiss out of hand claims by male employees alleging more favorable treatment of women or of white employees alleging more favorable treatment of people of color, nor should courts seek that “something more” that would prove the employer to be an outlier that discriminates against the majority. The Supreme Court has spoken unanimously: all claims of discrimination are subject to the same evidentiary burden, regardless of the plaintiff-employee’s majority-group status.
Judge Rules Thousands of Venezuelan TPS Beneficiaries Remain Work Authorized; Group Focuses on DHS Venezuela, Haiti TPS Decision
On June 2, 2025, U.S. District Court Judge Edward Chen ruled that the Department of Homeland Security (DHS) cannot invalidate Venezuela Temporary Protected Status (TPS) documents, including work authorization documents, issued pursuant to the Biden Administration’s Jan. 17, 2025, 18-month extension of Venezuela TPS. This ruling applies to documents received by beneficiaries on or before Feb. 5, 2025, the date of the Federal Register Notice announcing DHS’s decision to terminate the Venezuela TPS program.
Judge Chen pointed to Section 1254a(d)(3) of the Immigration and Nationality Act, which says TPS-related documents can be invalidated only after a termination notice is published.
Judge Chen’s order impacts approximately 5,000 Venezuela TPS beneficiaries.
DHS has not yet responded to Judge Chen’s June 2 ruling in light of the U.S. Supreme Court’s May 19 ruling granting a Justice Department request to lift Judge Chen’s March 31 order halting DHS’s termination of Venezuela TPS.
On June 3, the National TPS Alliance and several Venezuelans asked Judge Chen to set aside DHS’s decision to vacate the Venezuela and Haiti TPS programs, calling the rationale for the terminations “preordained and contrived.” The Alliance contends that DHS Secretary Kristi Noem lacked the authority to terminate the Venezuela and Haiti TPS programs on the basis of a defective registration process and the national interest.
In a court filing, the Alliance said, “Nothing in the record suggests the secretary had any interest in registration issues at all.” Instead, the Alliance maintains, the record indicates that DHS officials “rushed” to draft vacatur and termination notices prior to Secretary Noem’s confirmation.
A panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments in July on the merits of Judge Chen’s decision to enjoin termination of the Venezuela TPS program pending the outcome of litigation.
Supreme Court Rejects Heightened Evidentiary Requirement for Majority Groups in Title VII Cases
What You Need to Know:
Equal Protection Under Title VII: On June 5, 2025, the U.S. Supreme Court unanimously ruled that Title VII’s protections apply equally to all individuals, regardless of whether they are in a majority or minority group, reinforcing a plain-language interpretation of the statute.
DEI Implications and Legal Scrutiny: The decision comes amid increasing scrutiny of employer DEI initiatives, highlighting the need for programs to comply with Title VII’s equal treatment requirements for all protected groups.
More Changes on the Way? A concurring opinion questions whether the longstanding McDonnell Douglas standard should govern at summary judgment in Title VII cases, possibly foreshadowing more changes to come.
In Ames v. Ohio Department of Youth Services, the U.S. Supreme Court unanimously rejected a rule requiring that Title VII discrimination claims brought by “majority-group” plaintiffs meet a heightened evidentiary standard to establish a prima facie case of discrimination. In doing so, the Court held that Title VII applies equally to all groups within its protected classes based on the plain language of the statute that does not differentiate amongst groups. This decision is significant in light of the shifts in the Equal Employment Opportunity Commission’s position on employer diversity, equity, and inclusion (DEI) initiatives.
In Ames, a heterosexual woman plaintiff alleged that she was denied a promotion and subsequently demoted due to her sexual orientation. The district court granted summary judgment to the employer on the grounds that the plaintiff failed to meet the Sixth Circuit’s “background circumstances” rule. Plaintiffs who are members of a majority group are required to establish “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Multiple other Circuits similarly imposed heightened evidentiary burdens on majority group plaintiffs.
The Supreme Court unanimously rejected the background circumstances rule, holding that Title VII’s text does not support imposing a heightened standard on majority-group plaintiffs. Justice Ketanji Brown Jackson, delivering the unanimous opinion for the Court, stated that Title VII’s protections apply equally to all individuals; they do “not vary based on whether or not the plaintiff is a member of a majority group.”
While the decision is not necessarily unexpected, the impact of the Ames decision could be heightened given the recent focus on employer DEI initiatives. In recent guidance finding that employer DEI programs that provide benefits to employees based on race or other protected group status may be unlawful, EEOC has similarly expressed that Title VII’s protections and requirements are equally applicable to all protected groups.
Also notable is a concurring opinion issued by Justices Clarence Thomas and Neil Gorsuch. In addition to noting their agreement with the majority, Justices Thomas and Gorsuch questioned the lower court’s use of the McDonnell Douglas burden-shifting standard in awarding summary judgment to the employer. The concurring opinion expressed that requiring employees to meet the McDonnell Douglas standard at the summary judgment stage was an excessive burden, and invited future challenges to the standard’s application.
The Ames decision underscores the importance of treating all employees fairly under Title VII. Further, the decision emphasizes the need to assess workplace programs for vulnerabilities in light of the EEOC’s DEI focus.
Supreme Court Settles Circuit Split on Standard of Proof for “Reverse Discrimination” Lawsuits
On June 5, the US Supreme Court issued a unanimous opinion settling a split among the federal appellate courts about the burdens of proof in lawsuits alleging “reverse discrimination,” in which a member of a majority group sues for employment discrimination. The Court held that claims brought by members of a majority class are held to a standard identical to that of claims brought by members of a minority class. See Ames v. Ohio Dept. of Youth Services.
The plaintiff in the case, Marlean Ames, is a heterosexual woman who alleged that her employer failed to promote her and ultimately demoted her because of her sexual orientation. She alleged that the roles were filled by a lesbian woman and a gay man. The lower courts dismissed Ames’s lawsuit, holding that she did not provide any evidence of “background circumstances” that would support the “unusual” conclusion that her employer discriminates against the majority.
Under Title VII, to prove an employment discrimination claim, an employee must make a prima facie case, which involves identifying others outside the employee’s protected class (race, gender, sexual orientation, religion, etc.) who were treated more favorably than the employee making the claim. One way to make this showing is to point to evidence that the employee was replaced by someone outside their protected class. While Ames made this showing, the lower courts, following precedent in their circuit, held that this was not sufficient to proceed with her claim, as “reverse discrimination” lawsuits require additional facts.
The Supreme Court’s decision resolved an inconsistency among the lower federal courts. Courts in the Sixth, Seventh, Eighth, Tenth, and DC Circuits had held that there was a higher burden for members of a majority class to prevail on an employment discrimination claim. Focusing on the text of Title VII, the Supreme Court unanimously rejected this approach, agreeing with the remaining federal circuits that members of majority and minority classes should be held to the same legal standard.
This decision could have far-reaching implications for employers throughout the country, particularly as businesses grapple with shifting federal regulations and guidance around diversity, equity, and inclusion in hiring practices. In addition to heightened federal scrutiny of such initiatives, individual employees who are members of a majority class now have a clearer legal pathway to relief if they feel they have experienced workplace discrimination. Employers should ensure that they have policies in place to prevent harassment, discrimination, and retaliation in the workplace and avenues for employees to report those concerns.
Does a Bank Need to Produce Social Security Records in Response to a N.Y. Information Subpoena?
As a general rule, a bank or other financial institution is not required to produce full Social Security numbers in response to a N.Y. Information Subpoena. A bank/ financial institution should not do so unless directed by Court Order. Rather, when responding to an N.Y. Information subpoena, a subpoenaed financial institution should only provide the last four digits of a customer’s Social Security number (absent a Court Order specifically requiring the production of a customer’s complete Social Security number). We counsel our financial institution clients to follow this practice.
As a general rule, the dissemination of Social Security numbers is regulated and restricted. See, for example , New York Labor Law§ 203-d, which provides that social security numbers constitute “personal identifying information,” which should not be publicly displayed, printed on identification badges or cards, or communicated “to the general public.”
In Meyerson v. Prime Realty Servs., LLC, 7 Misc. 3d 911, 917, 796 N.Y.S.2d 848, 854 (Sup. Ct. 2005), the Court conducted a “broad review of the treatment of social security numbers” and determined that “it is clear that the weight of authority favors treating a social security number as private and confidential information. In casting for a proper legal characterization, the law appears to support a conclusion that a social security number is protected by something akin to a privilege against disclosure.” Accordingly, with respect to subpoenas, Courts will typically direct that social security numbers be redacted. See, for instance, Beaudette v. Infantino, 73 Misc. 3d 864, 873, 157 N.Y.S.3d 243, 251 (N.Y. Sup. Ct. 2021), where the Court held as follows:
the court directs the redaction of any personal identifying information of any natural person that appears within any record to be disclosed, including but not limited to such person’s name, address, telephone number, date of birth, social security number, and any information that would reveal such person’s medical or mental health condition.
(emphasis added).
For your information, it has long been our practice of redacting all but the last four digits of Social Security numbers. Specifically, New York’s electronic filing rules deem Social Security numbers to be “Confidential Personal Information” or “CPI” which should only be filed with the Court in redacted format:
“Here is the list of the CPI to redact and how to redact it:
Taxpayer ID numbers, social security numbers, and employer ID numbers are redacted by leaving out everything but the last four numbers. For example: xxx-xx-1234.”
https://www.nycourts.gov/Courthelp/goingtocourt/redaction.shtml
Accordingly, a customer’s full Social Security number should not be produced in response to a New York Information Subpoena. We would strongly suggest that when responding to a New York Information Subpoena, a bank or financial institution should provide only the last four digits of a customer’s Social Security number, unless a court Order is received requiring the production of the complete Social Security number.