On July 28, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in support of the petitioners in Jackler & Jaroch v. MSPB & DOJ (Federal Circuit). Petitioners Megan Jackler and Brandon Jaroch were career civil servants, who were terminated in February 2025 without the minimal advance notice required by the Civil Service Reform Act (CSRA) of 1978. The Merit Systems Protection Board (MSPB), in reviewing an original reinstatement finding, held that Article II abrogates Petitioners’ protection under the CSRA and that the MSPB lacked jurisdiction to hear their appeals. The brief examines the importance of the CSRA and extreme danger to the politically neutral civil service if the President is allowed to have universal termination rights for all executive branch employees, with no appeal right to the MSPB. As the brief states, “(n)othing in Article II requires that inferior officers or career federal employees serve at will. The Supreme Court’s cases recognize that presidential accountability is preserved through supervision and direction, not through a rule of universal removability. And although the government will invoke modern removal precedent, those decisions do not authorize the Executive to disregard statutory protections, bypass due process, or dismantle the … Read More
Amicus Briefs
NELA Joins Amicus Brief in Department of Labor v. Sun Valley Orchards (SCOTUS)
On April 27, 2026, the U.S. Supreme Court granted certiorari to review the decision of the 3rd Circuit in Sun Valley Orchards v. US Department of Labor. The Court granted review to consider whether Article III of the Constitution precludes the Department of Labor’s (DOL) administrative-enforcement role, namely in collecting monetary remedies from employers who have violated the terms and conditions of employment of H-2A workers and domestic workers. NELA joined National Lawyers Guild, National Legal Aid & Defender Association, California Rural Legal Assistance Foundation, Northwest Workers’ Justice Project and Justice in Motion in filing an amicus brief in support of the Department of Labor. The academic brief examines the application of the public-rights doctrine to DOL’s enforcement actions, arguing that they are the kind of matter “traditionally reserved to the legislative and executive powers” and thus do not fall under the auspices of Article III.
NELA is grateful to Eirik Cheverud, Albany Law School (NY) for drafting the brief.… Read More
O’Neill v. University of Pennsylvania
On February 19, NELA, joined by the National Women’s Law Center, filed an amicus brief in the 3rd Circuit case O’Neill v. University of Pennsylvania. This important case addresses the proper standard to analyze employer responsibility for 3rd party harassment. In O’Neill, the Plaintiff was a junior academic employee who was required to interact with a student who repeatedly intimidated her and subjected her to unwanted romantic communications that caused her serious harm, eventually forcing her from her position.
The district court (in direct contradiction to the Supreme Court, 3rd circuit, and 9 other circuit precedents) adopted the new 6th Circuit intent-based standard from Bivens v. Zep, which held that plaintiffs must show intent on behalf of the employer in 3rd party harassment cases.
NELA’s brief examines the importance of holding employers to a negligence standard, the standard recognized by most circuit courts and the U.S. Supreme Court. The brief argues that employers are best positioned to address the harassment of their employees once on notice, as they have the ability to prevent and remedy the work environment where the harassment occurs. Courts have repeatedly found that the negligence standard incentivizes employers to create proactive policies to … Read More
Doe v. Catholic Relief Services
On January 9, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) as amici in the 4th Circuit case, Doe v. Catholic Relief Services. The brief was written in support of John Doe, who was employed by Catholic Relief Services (CRS). CRS originally provided healthcare benefits to married spouses of employees, including LGTBQ+ couples. CRS later terminated health insurance coverage for John Doe’s husband, citing their religious objection to gay marriage. Doe sued CRS claiming sex and sexual orientation discrimination under the Maryland Fair Employment Practices Act (MFEPA), sex discrimination under the Maryland Equal Pay for Equal Work Act (MEPEWA), Title VII, the federal Equal Pay Act, and retaliation. The district court granted summary judgment for Doe on his federal claims, holding that his suit was not barred by the doctrine of church autonomy nor by the Religious Freedom Restoration Act (RFRA).
Our brief echoes the previous brief NELA and MWELA drafted in Zinski v. Liberty University. In both cases, a religious employer engaged in adverse employment action against members of a protected class. Both religious employers defended their actions on religious grounds, arguing that their decisions were made on the basis of religion and not protected class. … Read More
Holsten v. Barclays Services, LLC
On January 20, 2026, NELA joined the Metropolitan Washington Employment Lawyers Association, the National Women’s Law Center, Public Justice, and the American Association for Justice as amicus curiae in the 4th Circuit case Holsten v. Barclays Services, LLC. This brief is the latest in a series filed by our coalition to ensure circuits are interpreting the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) in a broad and uniform manner, ensuring that survivors of workplace sexual harassment and assault can seek vindication in the courts. Aloma Holsten filed suit on several claims against Barclays after experiencing sex-based harassment in the workplace. The district court found, with the Fourth Circuit affirming, that Ms. Holsten’s entire case, not merely the harassment claim, would be exempt from arbitration under the EFAA. Our brief supports that conclusion.
As the brief demonstrates, Congress enacted the EFAA in 2022 to ensure that survivors of sexual assault and sex-based harassment could seek justice in court rather than be forced into arbitration proceedings. The brief argues that the EFAA’s plain text, legislative history, and case law all confirm that, under the EFAA, plaintiffs can invalidate arbitration agreements if sex-based harassment has occurred, … Read More
National Employment Lawyers Association Statement on the Supreme Court’s Unanimous Decision in Ames v. Ohio Department of Youth Services
Yesterday the U.S. Supreme Court ruled 9-0 in favor of the worker in Ames v. Ohio Department of Youth Services, holding that the “Sixth Circuit’s ‘background circumstances’ rule—which requires members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII claim—cannot be squared with the text of Title VII or the Court’s precedents.” Along with the Biden Administration, NELA filed an amicus brief on behalf of the worker in Ames, authored by renowned Supreme Court practitioner Professor Eric Schnapper. In light of the expected unanimous result in favor of Ames and against the “background circumstances” test, NELA focused its brief on asking the Court to clarify that no workers should be subject to an overly rigid application of McDonnell Douglas at the summary judgment stage, a call that was endorsed by other civil rights organizations.
The Court spoke to the issue. While the holding was narrowly focused on the “background circumstances” test, both the majority and concurring opinions emphasized the importance of flexibility when courts apply McDonnell Douglas. Justice Jackson’s opinion for the majority noted: “The ‘background circumstances’ rule also ignores our instruction to avoid inflexible applications of McDonnell Douglas’s first prong. … Read More
Ames v. Ohio Department of Youth Services
On December 16, 2024, NELA filed an amicus brief with the U.S. Supreme Court in Ames v. Ohio Department of Youth Services. The question presented is whether, to survive summary judgment, employees of so-called “majority” groups must show “background circumstances” that the employer discriminates against the majority as an additional element of their prima facie case under McDonnell Douglas Corp. v. Green. Under the authorship of renowned Supreme Court practitioner Eric Schnapper, NELA took the opportunity to remind the Court that all workers, and not just majority workers, can be harmed by lower courts’ overly rigid application of the McDonnell Douglas at the summary judgment stage. NELA urged the Court to hold that while McDonnell Douglas can be a useful tool in some cases and that plaintiffs have the right to proceed under that framework if they so choose, employees do not need to establish a prima facie case at all to survive summary judgment. Rather, the question at summary judgment should be, as it is in all cases, whether there is a genuine issue of material fact that could allow a reasonable jury to find in the plaintiff’s favor. In crafting this brief, NELA weighed many competing interests, … Read More
Kenneth Moses v. United States Steel Corp.
On March 13, 2024, NELA joined the Western Pennsylvania Employment Lawyers Association and NELA-Eastern Pennsylvania in an amicus brief in support of the worker in Moses v. U.S. Steel (3rd Circuit). The brief addressed the numerous errors made by the lower court in granting summary judgment to U.S. Steel. Mr. Moses sued U.S. Steel, alleging race discrimination under 42 U.S.C. § 1981 and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 955(a). The district court ignored both circuit and Supreme Court precedent, requiring that Mr. Moses show “pretext plus” in order to survive summary judgment. Additionally, the district court rationed evidence between the prima facie case stage and the pretext stage and relied on the testimony of another employee who felt that he personally had never been the victim of race discrimination by U.S. Steel. The brief points out not only the long-recognized evidentiary burden that plaintiffs alleging race discrimination must overcome, but the numerous controlling cases that require only evidence of a prima facie case and evidence of pretext in order to survive summary judgment. We are grateful to NELA Board Member Christine Elzer, Elzer Law Firm, LLC (Pittsburgh, PA) for drafting this important brief.… Read More
Stanley v. City of Sanford, Florida
On March 9, NELA, joined by NELP, filed an amicus brief with the Supreme Court in support of a grant of certiorari in Stanley v. City of Sanford, Florida. Karyn Stanley served for 20 years as a firefighter in Sanford, Florida, until taking disability retirement at the age of 47 due to Parkinsons Disease. Ms. Stanley sued, alleging that the city’s policy change (which ended her post-employment health benefits) discriminated against her on the basis of her disability under Title I of the Americans with Disabilities Act (ADA). The lower court dismissed, and the 11th Circuit affirmed, holding that “a former employee who does not hold or desire to hold an employment position cannot sue over discriminatory post-employment benefits.” This holding is in clear contradiction to the jurisprudence in other circuits.
In supporting a grant of cert, the brief argues that “this case is ideal for addressing the issue because the question presented is narrow: the Court need only address whether former employees can sue under Title I of the ADA.” Post-retirement benefits are hugely important for workers when making decisions about their employment, and workers with disabilities must have clarity on when they can rely on the important … Read More
Shipton v. Baltimore Gas and Electric
On September 25, NELA, the Institute, and A Better Balance jointly filed an amicus brief with the Fourth Circuit in the matter of Shipton v. BGE (No. 23-1360) urging the court to reject the “honest belief” defense in FMLA interference cases. The plaintiff in the case, Michael Shipton, was ostensibly terminated for misuse of FMLA leave, but his employer did not engage with any of the steps prescribed in the FMLA for dealing with concerns about fraud. Now the company has argued that they should not be liable for their actions because they had an “honest belief” that he had misused his FMLA leave when they terminated him. This claim cuts against the plain language of the FMLA, which only authorizes consideration of employer motivation for the purposes of determining liquidated damages. Although some courts have endorsed the use of the “honest belief” defense in FMLA retaliation cases, the Fourth Circuit has never sanctioned the defense, and should decline to do so now. NELA would like to thank Erika Jacobsen White of Joseph, Greenwald & Laake, P.A. and NELA President Carla Brown of Charlson Bredehoft Cohen Brown & Nadelhaft PC for their work on drafting and filing the brief.… Read More
Muldrow v. City of St. Louis
On September 6, NELA, joined by the National Women’s Law Center and the NAACP Legal Defense Fund, filed an amicus brief in the U.S. Supreme Court in Muldrow v. City of St. Louis. The brief argues that the 8th Circuit erred when finding that a police sergeant’s job transfer did not constitute gender discrimination. The brief also argues that this interpretation contradicts the congressional intent of the federal law and does not comport with the text of the statute. Highlighting the importance of non-economic aspects of a job, the brief contends that adverse actions of this type can also run afoul of the Court’s ruling in Brown v. Board of Education. NELA member Carolyn Wheeler, Katz Banks Kumin, LLP (DC) states “The issue here is a straightforward question of statutory construction. The statute prohibits discrimination on the basis of sex, race, national origin, or religion in the terms, conditions, or privileges of employment without any qualifying adjectives about a degree of harm the discrimination must cause. The discriminatory decision is what is unlawful and plaintiffs should be able to pursue such claims without the burden of proving the decision caused some level of “material” harm, which courts usually … Read More
Rodgers-Rouzier v. American Queen Steamboat Operating Company
On September 5, NELA filed an amicus brief in the 7th Circuit, supporting workers who had their FLSA claims dismissed in Rodgers-Rouzier v. American Queen Steamboat Operating Company. This case hinged on whether opt-in plaintiffs were in fact party plaintiffs and when the statute of limitations begins tolling for these plaintiffs. The brief highlights that requiring anything beyond written consent forms for a plaintiff to be classified as a “party plaintiff” would create a circuit split, putting the seventh circuit directly in contradiction with a number of other circuits and Supreme Court jurisprudence. Additionally, the brief notes that “the language of the FLSA, this Circuit’s caselaw, and the purpose of FLSA collective actions all support a rule that the statute of limitations for opt-in plaintiffs in an FLSA collective action is tolled on the date they file their written consent and become a party plaintiff to the action.” NELA is grateful to NELA Board Member Summer H. Murshid, Martha Burke and Connor Clegg, Hawks Quindel, S.C. (WI) and Clif Alexander and Lauren E. Braddy, Anderson Alexander, PLLC (TX) for drafting this important brief.… Read More
