More than 2,000 U.S. law school faculty members said they were satisfied or very satisfied with their current position, according to a new national study by the Association of American Law Schools. Women and faculty of color reported slightly lower satisfaction rates. Flexibility for family matters, teaching loads and leave policies were among the top factors law professors cited as reasons they enjoy their work. The study was one of the most comprehensive analyses of law professors in recent years, Reuters reports.

Knox County, County Mayor Glenn Jacobs and the Pension and Retirement Board have asked a judge to dismiss a lawsuit filed by sheriff's office employees who claim they were denied their entitled pensions. The lawsuit was filed in June in Knox County Chancery Court after limits were imposed on pensions for patrol officers and jailers. About 300 officers and jailers are affected by the cap, and the plaintiffs argue that it violates the county's charter, Knox News reports. In 2023, the Knox County Commission approved a plan to limit how much of an employee's salary is used to calculate retirees' pension payments, capping the pension calculation at 3% per year. The officers and jailers contend they signed onto a plan that guaranteed pension payments based on their full pay each year, without restrictions, and say the change violates the terms for those who joined the plan between 2007 and 2014. A judge will hear arguments on Dec. 16.

Environmental groups American Riverkeepers and American Whitewater filed a lawsuit in federal court Monday against the U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers and the U.S. Forest Service. The lawsuit alleges the agencies illegally allowed CSX Transportation to dredge the Nolichucky River gorge in East Tennessee for rocks and other materials to rebuild rail lines damaged or washed away by floods from Hurricane Helene. According to the Tennessee Lookout, the dredging poses risks to the river, its aquatic life and the potential for future downstream flooding that could affect communities dependent on the river for tourism revenue. The lawsuit claims the federal approvals violated standard agency procedures and several federal environmental laws designed to protect river ecosystems. CSX said it would continue to work with federal agencies to "ensure rail infrastructure is recovered and restored in the safest and most environmentally responsible way," the newspaper reports.

The TBA Attorney Well Being Committee will host a unique yoga-focused forum on April 18. Designed specifically for attorneys, this event will feature evidence-based meditation and yoga techniques to relax your mind and improve professional performance. The forum will be led by lawyers who are also licensed yoga instructors, teaching you practical strategies to reduce stress, enhance focus and maintain composure in high-pressure situations. No prior experience in yoga or meditation is necessary. Anyone in the practice of law who is interested in cultivating a sustainable work-life balance is welcome. Learn more here.

On Nov. 5, the U.S. Supreme Court heard arguments in a case that impacts the burden of proof for employers relying on overtime exemptions under the FLSA. In E.M.D. Sales v. Carrera,[1] three sales representatives sued their employer alleging violations of the FLSA’s overtime provision. The employer’s defense relies on application of the “outside sales” exemption, which requires, in part, that the employee’s primary duty is making sales. While all circuits put the burden on defendant-employers to prove that one of the FLSA’s 34 exemptions apply in any given case, the 4th Circuit alone has held that this proof must be established by “clear and convincing evidence.” Because the statute itself does not articulate a standard, the default standard of proof for civil cases that all other circuits have applied is “preponderance of the evidence.” The Appellant in E.M.D. Sales has argued that the “clear and convincing evidence” standard is applied only when explicitly required by a statute or when the interests at stake are more important and substantial than “mere loss of money”[2] and, thus, that it should not apply here. The respondent employees, on the other hand, have argued that the judiciary has discretion to adopt a standard it determines appropriate and that the heightened standard appropriately effectuates the important public purpose of the FLSA. Given the court’s rejection in 2018 of the principle that “FLSA exemptions are to be narrowly construed” in pursuit of the remedial purpose of the Act,[3] it seems likely the court will order the 4th Circuit to apply the more typical “preponderance of the evidence” standard.

Another upcoming case to watch is Stanley v. City of Sanford, arising out of the 11th Circuit.[4] The plaintiff in that case is a former city firefighter who retired in 2018 after developing Parkinson’s disease. Unfortunately, Stanley discovered only after she retired that the city had changed its post-employment benefits policies, permitting disabled retirees to maintain free health insurance only for 24 months after retiring. (When Stanley was hired, disabled retirees were entitled to free health insurance until age 65.) In affirming summary judgment against Stanley on her ADA discrimination claim, the 11th Circuit relied on precedent holding that “a former employee who does not hold or desire to hold an employment position cannot sue over discriminatory post-employment benefits.”[5] That court doubled down on its reasoning that the definition of “qualified individual with a disability” protects only an individual who presently “holds” or “desires” a position with the employer.[6] The court explained that its position was consistent with decisions from the 6th, 7th, and 9th Circuits and declined to adopt opposite holdings from the 2nd or 3rd Circuits.[7] In deciding this case, the Supreme Court will likely weigh its penchant for a strict-textualist reading of the statute  against a policy that seemingly would allow employers a certain level of impunity to discriminate against former employees and retirees.

The court also will decide this term whether “majority-group” plaintiffs alleging workplace discrimination are held to the same prima facie case as other Title VII plaintiffs. These cases, often referred to as “reverse discrimination” cases, involve plaintiffs who are members of the majority demographic and are alleging that they suffered discrimination because they are not members of a minority group. In Ames v. Ohio Dep’t of Youth Servs.,[8] the plaintiff/appellant is a heterosexual woman who alleges that she was demoted and then fired from her job because she is not gay. In affirming the lower court’s grant of summary judgment against Ames, the 6th Circuit, relying on its own long-standing precedent,[9] held that, in addition to the normal elements of a Title VII prima facie case, Ames must also establish “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority.”[10] Such “background circumstances” typically include evidence that the decisionmaker was a member of the “relevant minority group” or statistical evidence showing a pattern of discrimination against the majority group.[11] The 6th Circuit has reasoned that the additional proof requirement is appropriate to effectuate the primary purpose of Title VII, which is to “to assure equality of employment opportunities and to eliminate those discriminating practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.”[12] Four other circuit courts, in addition to the 6th, have similarly modified the McDonnell Douglas prima facie standard for allegations of “reverse discrimination,” while two circuits have explicitly rejected the different standard, and five other circuits have simply always analyzed “majority-group” plaintiffs’ classes the same as other discrimination cases. Given the split of authority and the current Supreme Court’s textualist and conservative bent, it is not surprising that it granted cert in this case. 

E.M.D. Sales, Stanley, and Ames are just three of the cases before the Supreme Court this term that are likely to have a substantial impact on future employment litigation. Also likely to impact employment litigators is Waetzig v. Halliburton Energy Servs.,[13] which deals with the proper process for seeking to have an arbitration award vacated when the case had previously been filed, and voluntarily dismissed, in court. In Williams v. Washington, the court will decide whether state law may mandate plaintiffs to exhaust state administrative remedies before filing claims against employers pursuant to 42 U.S.C. §1983.  Additionally, in Lackey v. Stinnie,[14] the court will decide whether a plaintiff filing suit against the state can be determined a “prevailing party” for purposes of awarding attorney’s fees after receiving a preliminary injunction but having the case dismissed as moot due to the state repealing the offending law. Although not specifically an employment case, the outcome of this case is likely to impact arguments regarding who is and is not a “prevailing party” entitled to attorney’s fees in employment cases as well.

Maha M. Ayesh is currently the associate dean for academic affairs at the Lincoln Memorial University Duncan School of Law and has represented employees in employment disputes for several years.

Huang v. Ohio State University, 116 F.4th 541 (6th Cir. 2024), involved a sexual harassment lawsuit. The twist was that the plaintiff, Meng Huang, was a graduate student. So, along with the usual “was the conduct severe and pervasive enough to constitute unlawful harassment” questions relating to the sexual harassment claim (the suit also included a retaliation claim), a key question became whether Huang could even file a claim under Title VII since this federal law only applies to “employees.” It is interesting to think this question of whether a graduate student is an “employee” under Title VII had not been addressed previously, but that was the case — in the 6th Circuit Court of Appeals at least — before the Huang decision.

The Legal Playing Field

By way of providing some context for the 6th Circuit’s rationale below, Title VII defines “employee” as “an individual employed by an employer.”[1] Because this definition “is completely circular and explains nothing,” the 6th Circuit applies the common law meaning of the term and has adopted an agency test to answer the legal question of whether an individual is an “employee” for purposes of Title VII.[2] The crux of this test requires a court to consider the scope of the parties’ relationship  and specifically the hiring entity’s “right to control the manner and means” by which an individual accomplishes the work they perform on behalf of the hiring entity.[3] This is done by examining “all incidents [or dimensions] of the relationship.”[4]

The factors of this agency test the 6th Circuit found most relevant in the Huang decision were how much control Ohio State exercised over Huang’s work as a graduate student, the benefits Ohio State received for her work, and the benefits she received from Ohio State for it.[5]  The court also pointed out that the factor many employees and employers alike still believe is (or should be) the determining one — how the parties themselves label the relationship — actually is completely irrelevant to this agency test “and should be ignored.”[6]

The Court’s Holdings

Huang filed suit in the U.S. District Court for the Southern District of Ohio at Columbus. The district court dismissed all her claims against Ohio State in granting Ohio State’s motion for summary judgment on the ground described above, finding that a graduate student is not an “employee” under Title VII. The 6th Circuit found that the district court had erred in dismissing Huang’s claims against Ohio State and that there were disputed issues of fact which a jury would need to resolve in determining whether Huang was an “employee” under Title VII.

The Court’s Rationale

The district court had reasoned that since Ohio State classified all graduate students as “students,” this classification precluded a finding that a graduate student could be both a “student” and an “employee” simultaneously.[7]  The 6th Court found that because “a student’s academic and employment work can overlap, [being classified as a ‘student’] does not [automatically] remove them from the employment protections of Title VII.”[8] (Emphasis supplied.) In making this determination, the 6th Circuit looked to the decisions of other circuits in what it deemed to be similar contexts in which these other circuits had recognized that this dichotomy could exist, such as medical residents who are attending classes and receiving other types of educational training at a medical school but who also are seeing patients as part of their medical residency programs.[9]

Additionally, Ohio State had weakened its own argument that Huang was not an “employee” by classifying her as one when she was a graduate research assistant but not when she was a graduate fellow.[10]  The court found that there was “little to no difference” in the amount of control Ohio State exercised over its graduate fellows and its graduate research assistants to warrant this distinction as a matter of law.[11]

Finally, the 6th Circuit discussed the 13 factors the U.S. Supreme Court recognized in Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318 (1992), to assess a hiring party’s “right to control the manner and means” by which the work of an individual is performed so as to be deemed an “employee.”[12] These 13 factors are:

1. the hiring party’s right to control the manner and means by which the [work] product is accomplished;
2. the skill required [to perform the work];
3. the source of the instrumentalities and tools [used to perform the work];
4. the location of the work;
5. the duration of the relationship between the parties;
6. whether the hiring party has the right to assign additional projects to the [individual];
7. the extent of the [individual’s] discretion over when and how long to work;
8. the method of payment;
9. the [individual’s] role in hiring and paying assistants;
10. whether the work is part of the regular business of the hiring party;
11. whether the hiring party is in business;
12. the provision of employee benefits [to the individual]; and
13. the tax treatment of the [individual].[13]

Those of us who travel in these waters frequently will recognize these as the 13 factors we are accustomed to using when classifying a worker as either an “employee” or an “independent contractor.” The Huang decision affirms the 6th Circuit’s willingness to apply these factors in other contexts in determining who is an “employee” as a matter of law.

What This Decision Means for Employers

The 6th Circuit did not ultimately determine whether Huang’s position as a graduate student qualified her as an “employee” under Title VII. Rather, this determination was remanded to the district court with the 6th Circuit’s instruction to apply the 13-factor Darden test on its own.[14] Each time the 13-factor Darden test is applied by the 6th Circuit, however, employers gain additional insight into how these factors are likely to be applied in their workplace.

In Huang, the 6th Circuit continued to place an emphasis on “factor [10]” above — whether the work the individual is performing is part of the regular business of the hiring entity.[15]  The court also highlighted the fact that Ohio State received significant economic benefits from Huang’s work, which supported her classification as an “employee,” as did the fact she received more from Ohio State than just “free tuition” as a graduate student.[16] She was paid a stipend, which Ohio State maintained was intended to pay for her living expenses, along with a discretionary bonus “in recognition of her academic and professional background.”[17] She also was “recruited” and selected for a particular division of Ohio State’s PhD program based on her knowledge, skill, and prior experience in her area of study.[18] Her program “supervisor” determined when and where Huang was to meet with him as well as whether these meetings would be virtual or in-person.[19] He also reviewed her work not only for an academic grade but also based on the requirements of the private company with whom Ohio State had contracted.[20]

Anyone who has read the court decisions recognizing college athletes as “employees” of their respective universities will not be surprised by the 6th Circuit’s decision in Huang, as that is the most publicized recent application of these factors, resulting in the NCAA along with individual colleges and universities now needing to negotiate with individual student athletes regarding name, image, and likeness compensation or “NIL deals.”

The Huang decision highlights the fact that merely labeling a worker an “intern,” a “contractor,” a “volunteer,” or even a “student” will not preclude the worker from being deemed by a court as an “employee” from a legal standpoint. This should serve as a reminder to employers that they need to take a closer look at anyone they have performing work for them on a regular basis who is not classified as an “employee” — even if, as was the case for “The” Ohio State University — this has been the case for decades not only for this university but for most others throughout the country. As we learned regarding the “student athlete” decisions, the mere fact that a position is widely classified the same way in the same industry does not mean it is correctly classified.

Stacie Caraway is a member of the Labor and Employment Practice Group at Miller & Martin PLLC in Chattanooga. She is fast approaching 30 years of practice; she started at age 10 (she likes to tell herself!). Caraway also has been singing professionally since age 9 and has performed at two Billy Graham Crusades and for three U.S. presidents.

Courts sometimes warn against applying the law in a rigid mechanical fashion.[1] With this principle in mind, the 6th Circuit Court of Appeals in McNeal v. City of Blue Ash[2] clarified a prior 6th Circuit panel’s decision[3] as to what type of evidence can properly support a hostile work environment claim.

Gary McNeal was a veteran member of the Blue Ash police department, having served 33 years in law enforcement and 17 years with Blue Ash. McNeal claimed that he began to experience a hostile work environment based upon age after Scott Noel was promoted to a supervisory position and later police chief. Under Noel’s leadership, McNeal alleged that he faced increased discriminatory and disproportionate discipline. Among the incidents included in his age-based hostile work environment claim were multiple disciplines (informal counseling, oral reprimands, and written reprimands) for minor infractions, being assigned to conduct a traffic study for which he had no training, heightened scrutiny in the form of internal investigations, three suspensions, and ultimately termination of employment.[4]

In analyzing McNeal’s hostile work environment claim, the court addressed the recent case of Ogbonna-McGruder v. Austin Peay State University.[5] The key language in Ogbonna-McGruder upon which the court focused is that allegations of discrete acts of discrimination “cannot properly be characterized as part of a continuing hostile work environment.”[6] The plaintiff in Ogbonna-McGruder asserted a racially hostile work environment claim based upon the following incidents: denial of an opportunity to draft a grant proposal and teach summer courses, receiving low evaluations, being reassigned to teach other courses, her office being moved to the basement, being scolded in a public setting, and having her teaching skills denigrated. Citing prior precedent, the court in Ogbonna-McGruder reasoned that the plaintiff’s “allegations that she was denied the opportunity to draft a grant proposal and teach summer courses, received low evaluations, was replaced by a white adjunct professor, and was reassigned to teach public management courses represent discrete acts that could perhaps support separate claims of discrimination or retaliation under Title VII.”[7] It therefore excluded those incidents from consideration in determining the merits of the plaintiff’s hostile work environment claim.

With a nod to Ogbonna-McGruder, the McNeal court noted that it must first determine which factual allegations constitute the kind of separately actionable discrete acts that are excluded from consideration in a hostile work environment claim.[8] In its analysis, however, the court clarified the holding of Ogbonna-McGruder. First, the court noted that “not every allegedly discriminatory incident is actionable simply because it is a discrete act.”[9] Second, the court explained that an adverse employment action can be impactful in two ways. It can cause a change in the terms or conditions of employment, but it can also be “deployed strategically as harassment” to add to the climate of hostility.[10] Third, and most insightful, the court noted that an adverse employment action could support a hostile work environment claim if it was “weaponized as [a] tool[] of harassment” to further a hostile environment.[11] As support for this third point, the court cited two Supreme Court cases. In Nat’l R.R. Passenger Corp. v. Morgan,[12] the Supreme Court held that a hostile work environment claim is “based on the cumulative effect of individual acts” which “may not be actionable” on their own — but there is no requirement that the acts not be independently actionable. In Green v. Brennan,[13] the Supreme Court explained that a hostile work environment claim “includes every act composing that claim, whether those acts are independently actionable or not.” 

In summary, the court clarified that “[w]hether a given act contributes to a hostile work environment does not turn on whether that act might support a separate claim.”[14] Rather, for purposes of a hostile work environment claim, discrete adverse employment actions are allowed as evidentiary support, but only if the discrete actions “contribute to the alleged environment of harassment.”[15]

Applying the clarified law to the facts, the court found that reassigning McNeal to complete a traffic study (i.e., a new work assignment) — while it could arguably be an independent adverse employment action — could also support a hostile work environment claim because it was intended to (1) demean and embarrass him, (2) justify more disciplinary action when he inevitably failed on the assignment, and (3) subject him to heightened scrutiny.[16] The court likewise found that multiple reprimands (documented counseling, oral reprimand, and written reprimand) for minor violations also could support a hostile work environment claim because the discipline was used “as a vehicle to target and belittle McNeal.”[17] Only the three suspensions and termination were excluded as evidence to support McNeal’s hostile work environment claim.[18]

The McNeal decision provides useful guidance for analyzing hostile work environment claims. While “death by a thousand small cuts” (multiple non-actionable acts) may be a traditional way of proving hostile work environment claims, the 6th Circuit has clarified that even “larger cuts” (actionable adverse employment actions) may be used to support hostile work environment claims. Other than the obvious adverse employment actions that directly affect an employee’s pay — such as terminations, demotions, failures to promote, and suspensions — many independently actionable adverse employment actions can support hostile work environment claims. Practitioners will need to show that these discrete acts furthered the ongoing hostility or harassment, such as proof that the actions were demeaning or humiliating or were designed to frustrate or cause increased scrutiny. The more the evidence paints a convincing mosaic of an ever-increasing intolerable work environment, the more likely courts will consider actionable adverse employment actions as contributing to an overall climate of hostility.

Doug Hamill is a member of Mikel & Hamill PLLC in Chattanooga. He primarily represents individuals in employment law matters. He can be reached at dhamill@mhemploymentlaw.com.

 [1] See, e.g., Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978) (reminding courts that the McDonnell Douglas burden-shifting method “was never intended to be rigid, mechanized, or ritualistic”).

Join Quinton Thompson, Nicole Grida, Jeffrey Moore and Kelly Conley for the TBA Young Lawyers Division's Rookie's Guide Series on Dec. 13 for Personal Injury Law. The live one-hour webcast will start at noon CST and provide s deeper exploration into handling more difficult personal injury cases. Topics include complex liability scenarios, strategies for catastrophic injury claims, and advanced litigation techniques such as motions in limine, effective deposition strategies and expert witness challenges. The program will wrap up with a session on navigating difficult negotiations while maintaining professional integrity. For a general overview, watch Personal Injury Law Part 1.

The Moore Decision: Examining the “Voluntariness” of Waivers of Title VII Claims in Last Chance Agreements

In August, the U.S. 6th Circuit Court of Appeals (6th Circuit) issued its decision in Moore v. Coca-Cola Bottling Co. Consol.,[1] reversing the lower court’s grant of summary judgment in favor of the employer, upon finding a genuine question of material fact as to the voluntariness of Title VII waivers in a Last Chance Agreement.

A year before his termination, the employee signed a Last Chance Agreement (LCA). This LCA contained a provision in which the employee agreed to “release and forever discharge the Company and the Union ... from any and all liability of any kind, whatsoever, relating to his employment with the Company, arising prior to the date of the LCA.”[2] Despite this provision, after his termination, the employee brought Title VII discrimination claims against the employer that predated the LCA.

Before the district court, the employer argued that it was entitled to summary judgment on grounds that the employee had knowingly and voluntarily entered the LCA, thereby waiving such claims. Conversely, the employee argued that the LCA waiver was involuntarily signed and thus could not be enforced.

The district court agreed with the employer and granted its motion for summary judgment. The 6th Circuit reversed and remanded the district court decision, finding that there was a genuine dispute of material fact as to whether the plaintiff-employee’s waiver was voluntary. In September, the court denied a petition for rehearing en banc.[3]

In reversing the lower court, the 6th Circuit highlighted that it “recognized that under particular circumstances employers and employees may negotiate a valid release of  ... Title VII claims.”[4] In short, courts will enforce a Title VII waiver if the employee entered into the waiver voluntarily. When examining voluntariness, courts apply an objective-subjective test, by asking “whether a reasonable person (objective) would have understood that they were waiving their rights based on a number of factors particular to the employee at issue (subjective).”[5] To determine the validity of a particular waiver, courts apply a totality-of-the circumstances test, examining: “(1) the plaintiff’s experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.”[6]

Considering these factors, the court found that several facts could support a reasonable jury in finding that the employee’s waiver was involuntary. For instance, the court noted that the meeting at which the employee signed the LCA lasted no longer than 10 minutes, with only a fraction of that time dedicated to actually discussing the LCA itself. Additionally, the employee did not have an attorney present at the meeting and the union representative in attendance gave the employee potentially confusing guidance.

Rather controversially, the court also stated that the plaintiff’s education — he held both an associate’s and bachelor’s degree — did not weigh in favor of a determination of voluntariness. The court explained that the plaintiff’s “education does not provide him with any type of legal, managerial, or contractual background that would be relevant to interpreting the LCA’s terms in a manner essentially at odds with what the union representative told [him].”[7] Furthermore, the plaintiff did not have previous experience with LCAs specifically.

Additionally, the court expressed concerns about the language of the release itself, stating that “[i]n other cases where we have found that such provisions are straightforward in their terms, the contracts have explicitly stated that the employee was waiving the right to bring a discrimination suit.”[8] In contrast, the LCA the employee signed in Moore only stated that it was releasing “any and all liability of any kind whatsoever relating to his employment” which the court found to be imprecise. The court highlighted that “the clearer the waiver or the more assistance a person receives in understanding an agreement, the less significant is any particular experience or background to finding knowing and voluntary waiver.”

Here, the court reasoned the waiver at issue was not clear and the employee had no experience or background to assist him in clarifying. Accordingly, the court felt that a reasonable jury could find the waiver involuntary and thus the district court’s grant of summary judgement was inappropriate.

In her firm dissent, Judge Batchelder wrote that she would have upheld the lower court’s grant of summary judgment, finding the document “very clear” and noting that it was only one page long.[9] The dissent characterizes the majority’s reasoning as a “distortion” which “creates a new requirement that signors [of LCAs] must have highly relevant education.” The dissent further highlighted that plaintiff had two degrees, experience with Second Chance Agreements, and union representation during the meeting.   

The Macomb Decision: Skirting the Baylor/IGT Issue

In September, the 6th Circuit issued its decision Nat’l Lab. Rels. Bd. v. Macomb.[10] This decision was the court’s rather anti-climactic response to the McLaren Macomb[11] decision of the National Labor Relations Board (NLRB), which made waves throughout employment law circles when it was decided in 2023. In McLaren Macomb, the NLRB treated broad non-disparagement and confidentiality provisions in severance agreements as a waiver of the signing employees’ Section 7 rights. Accordingly, the board determined that such broad provisions unlawfully restrain and coerce employees in their exercise of their Section 7 rights. Because employees may not broadly waive their rights under the NLRA,[12] the board held that the mere proffer of such an agreement violates the act, even absent any other unfair labor practice. In so holding, the NLRB explicitly overruled both Baylor University Medical Center[13] and IGT d/b/a International Game Technology.[14]

On appeal to the 6th Circuit, the employer appealed, among other issues, whether the severance agreements violated Section 8(a)(1). The 6th Circuit neatly side-stepped the burning issue by focusing on the fact that the specific severance agreements in question were “part and parcel” of the employer’s clearly illegal direct dealing with union-represented employees. Accordingly, while the court acknowledged the contentious debate surrounding the board’s decision to overturn Baylor and IGT, the court explicitly refused to consider the issue,[15] as the employer’s actions would have been a violation even under the more lenient Baylor/IGT standard.

Moving Forward

In light of these two decisions, employers should remember that McLaren Macomb remains the law of the land as it pertains to confidentiality and non-disparagement provisions in severance agreements. However, employers should keep a careful eye on developments, as seismic shifts are expected with the upcoming change of presidential administrations.

Additionally, pursuant to Moore, employers should ensure that waivers of Title VII rights include explicit language stating that the employee is releasing discrimination claims. Furthermore, employers should consider the signing employee’s education and experience and ensure that the employee has clearly documented support in their decision making.

Bethany Westcott Wilson is an associate of Kramer Rayson LLP in Knoxville, Tennessee, where she practices labor and employment law, focusing on complex federal and state leave law issues. She graduated from Lee University in 2017 and The University of Tennessee College of Law in 2024. 

PER CURIAM. At issue in this case is whether a request for a preliminary injunction focused on the 2024 election—arising from a challenge to Ohio’s process for placing constitutional initiatives on the ballot—is moot. It is. The targeted election has come and gone, making this request for preliminary relief moot.