This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

At the Supreme Court

Supreme Court Affirms Standard of Proof in FLSA Claims: Preponderance of the Evidence

In E.M.D. Sales, Inc. v. Carrera, 604 U. S. --- (Jan. 15, 2025), a the Supreme Court held that the preponderance-of-the-evidence standard, rather than the higher “clear and convincing” evidence standard, applies in claims for exemption under the FLSA. In so doing, the Supreme Court reversed the Fourth Circuit and sided with every other appellate court to address the issue.

The case involved claims by several sales representatives who alleged their employer failed to pay them overtime in compliance with the FLSA. Following a bench trial, the district court concluded that the employer failed to prove “by clear and convincing evidence” that the employees qualified as outside sales representatives who were exempt from overtime pay. The Fourth Circuit agreed, and the employer appealed to the Supreme Court. The Court examined the three circumstances when the heightened standard of proof applies: (1) when required by statute, (2) when mandated by the Constitution, or (3) when the matter involves significant government action, such as citizenship revocation, and found that none of them applied in this situation. The Court emphasized that, among other things, “this case does not implicate any constitutional rights that might require a heightened standard,” and that “[c]ases under the Fair Labor Standards Act are more akin to the Title VII cases where the Court has held that a preponderance standard applies.”

Seventh Circuit Addresses Requirements for Establishing Overtime Worked

Although neither the plaintiff nor the employer kept records of the hours she worked, the plaintiff in Osborn v. JAB Mgmt. Servs., Inc., --- F.4th ---- (7th Cir. Jan. 22, 2025) claimed her employer owed her wages for overtime. Examining the evidence presented, the Seventh Circuit agreed with the district court that the plaintiff failed to “prove by a just and reasonable inference” that she worked overtime. The evidence she provided, the court found, lacked specificity and was too vague and conclusory to support her claims.

Next, the Seventh Circuit examined whether the plaintiff could obtain damages, “assuming for the sake of argument” that the plaintiff had established a violation of the FLSA’s overtime requirements. First, the court stated that under Supreme Court precedent, employers are responsible for keeping accurate employee time records, and that where an employer has failed to do so, “the employer rather than the employee should bear the consequences of that failure….In those circumstances, the employee need only prove her damages by a just and reasonable inference, rather than demonstrate the ‘precise extent of uncompensated work.’” Nevertheless, the court held, even under this relaxed standard, the plaintiff must do more than offer vague, conclusory allegations of the time worked, which the plaintiff in this case failed to do.

Ninth Circuit Finds Ministerial Exception Applies to Supervisor of Kosher Food Preparation

The Ninth Circuit addressed the First Amendment’s ministerial exception to employment claims in Markel v. Union of Orthodox Jewish Congregations of Am., 124 F.4th 796 (9th Cir. 2024), a case involving claims for overtime pay by an employee who was a supervisor of kosher food preparation compliance for an orthodox Jewish organization. After reviewing the law and the facts, the Ninth Circuit agreed with the district court that the organization is a religious organization, the plaintiff is a “minister” within orthodox Judaism, and the First Amendment’s ministerial exception barred the plaintiff’s employment claims. The “ministerial exception,” the court stated, “precludes the application of ‘laws governing the employment relationship between a religious institution and certain key employees.’” Noting that the “ministerial exception encompasses more than a church’s ordained ministers,” and that “a faith’s minister broadly includes any individual ‘essential to the institution’s central [religious] mission,’” the Ninth Circuit found that the plaintiff was essential to the organization’s religious mission and therefore “a minister for purposes of the ministerial exception.”

Seventh Circuit Upholds Summary Judgment for Employer in Gender Discrimination Suit

Cunningham v. Austin, 125 F.4th 783 (7th Cir. 2025), involved a claim of sex discrimination by a female employee who asserted that she was passed over for a supervisor position in favor of a male employee because of her gender, in violation of Title VII. In support of her claim, the plaintiff asserted that it was her “heartfelt” belief that the division chief, who made the selection decision, preferred to work with a man, although he had praised her subject matter expertise. According to the division chief’s interview notes, the plaintiff’s responses to interview questions were “tactical,” rather than “strategic.” In contrast, the man who was selected for the position “gave ‘strategic’ responses to the standardized interview questions and demonstrated strong leadership skills.” In addition, the division chief found the male candidate was equal to or outperformed the plaintiff in every category except subject matter expertise and he was, therefore, “the better overall candidate” for the position. Based on these factors, the district granted summary judgment for the employer and the plaintiff appealed.

The Seventh Circuit agreed with the district court, stating that “[a]n employer’s genuine belief that another candidate’s vision for the organization or skillset makes them better suited for the job is a legitimate, nondiscriminatory hiring rationale.” The court also held that neither the division chief’s reliance on “subjective assessments” to make the employment decision nor the “decision to ask behavioral interview questions, rather than substantive ones” rendered the legitimate, non-discriminatory basis illegitimate. The “reliance on subjective assessments of the candidates’ interview performances [also] does not support an inference of pretext,” according to the Seventh Circuit. Having offered “no evidence that [the employer’s] hiring rationale was pretextual…[and] with only her heartfelt belief that [the division chief] preferred to work with a man,” the court concluded, “[the plaintiff] cannot defeat a motion for summary judgment.”

Tenth Circuit Grants Summary Judgment to Employer in Age Discrimination Collective Action Following Reduction-in-Force

After experiencing financial problems, an aircraft company tightened its system for evaluating employees in connection with a reduction-in-force, removing the advantage that tenure previously had played in evaluating employees and exempting new employees from the evaluation. As a result, several employees who were terminated filed a collective action alleging age discrimination in violation of ADEA. The district court granted summary judgment to the employer, and the plaintiffs appealed.

In response to the plaintiffs’ claim that removal of tenure protection in evaluating employees enabled the company to terminate older employees, in Raymond v. Spirit Aerosystems Holdings, Inc., 125 F.4th 1016 (10th Cir. 2025), the Tenth Circuit noted that “the Supreme Court has distinguished between tenure and age,” and that to succeed on their claim plaintiffs “needed to show that [the company] had used tenure as a proxy for age,” which the court found the plaintiffs failed to do. “An employee can’t show discrimination based solely on an employer’s refusal to give a preference to more senior employees in a reduction-in-force,” the court held.

The plaintiffs also claimed that the company’s periodic use of slides regarding healthcare expenses and salaries when discussing ways to reduce costs also reflected age discrimination. Evaluating that claim, the Tenth Circuit stated that though “older employees might generally incur greater healthcare expenses and earn higher salaries[,] that relationship [does] not necessarily reflect age discrimination: an employer can use factors often associated with age as long as the employer doesn’t act on the basis of age.” In this case, the court found, there was no evidence the employer sought to reduce healthcare costs by firing older workers.

First Circuit Grants Summary Judgment for the Employer on Vaccination Religious Exemption Claim

The plaintiff in Rodrique v. Hearst Commc'ns, Inc., --- F.4th ---- (1st Cir. Jan. 17, 2025), filed a claim for religious discrimination in violation of Title VII after his employer denied his request for a religious exemption from the company's COVID-19 vaccination requirement and terminated him for refusing to be vaccinated. The district court granted summary judgment for the employer on the grounds that the employee’s objections to the vaccine were not religious.

On appeal, the First Circuit assumed, as did the employer, that the plaintiff had identified a religious objection to the vaccine requirement but found that granting the plaintiff’s request for an exemption to the requirement would have imposed an undue hardship on the employer. In reaching this conclusion the court found that the employer reasonably relied on the CDC and “all applicable public health authorities” in determining that the vaccine “reduces the likelihood of transmitting the virus, and therefore that exempting employees from the vaccination requirement would pose a threat to the health of others,” and that the plaintiff failed to challenge this evidence. Thus, affirming summary judgment, the court concluded that based on the uncontroverted evidence that vaccinated people are less likely to transmit COVID-19, accommodating the plaintiff’s exemption request would be a substantial burden on the employer.¹

Fifth Circuit Rejects Sex, National Origin, and Retaliation Claims and Defines Requirements for Similarly Situated Comparators

In Shahrashoob v. Tex. A&M Univ., 125 F.4th 641 (5th Cir. 2025) the plaintiff claimed her employer discriminated against her because of her sex and national origin and retaliated against her in violation of Title VII by shortening and subsequently not renewing her employment contract. In support of her discrimination claims, the plaintiff alleged that she was treated less favorably than similarly situated employees who were not members of her protected group.

To make out a prima facie case of discrimination on these grounds, the court held, the plaintiff must show that the comparators “held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories.” The plaintiff in this case failed to do so. As to the plaintiff’s retaliation claim, the court held that the employer had legitimate, non-retaliatory reasons for its actions – budgetary constraints and teaching needs – and the plaintiff did not establish that these reasons were pretextual based on temporal proximity alone. Accordingly, the court affirmed summary judgment for the employer on all counts.