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The Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025) not only resolved a longstanding circuit split over the evidentiary burden for majority-group plaintiffs under Title VII, but also signaled a broader shift in how courts may approach employment discrimination claims going forward.

The Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025) not only resolved a longstanding circuit split over the evidentiary burden for majority-group plaintiffs under Title VII, but also signaled a broader shift in how courts may approach employment discrimination claims going forward.

The Court held that members of a “majority group”— i.e., those belonging to groups that have not historically faced discrimination — no longer have a heightened evidentiary burden compared to minority groups: they need not prove “background circumstances” to support that the employer unusually discriminated against the majority.

The plaintiff (who is heterosexual) alleged that her employer violated Title VII when it denied her a promotion in favor of a homosexual female, then demoted her and replaced her in her prior position with a homosexual male. She claimed that her employer denied her the promotion and demoted her because of her heterosexual sexual orientation. While these facts would ordinarily satisfy her burden under the first step of the McDonnell Douglas framework,  under Sixth Circuit precedent, as a member of a majority group, she was required to provide additional evidence, such as statistical proof or information about the relevant decisionmaker’s protected traits. She failed to produce such evidence, leading to dismissal of the case on summary judgment.

Justice Jackson’s opinion emphasized that Title VII protects “any individual” from discrimination based on protected characteristics, regardless of whether the person belongs to a majority or minority group. The Court rejected the Sixth Circuit’s “background circumstances” rule, which had required majority-group plaintiffs to provide additional proof—such as statistical evidence or information about the protected traits the decisionmaker may have—to establish a prima facie case. The Court found this rule to be inconsistent with both the text of Title VII and its own precedent, which discourages rigid applications of the McDonnell Douglas framework.

This ruling effectively levels the playing field for all plaintiffs, removing a procedural barrier that affected only majority-group litigants. As a result, courts must now evaluate claims of discrimination based solely on whether the plaintiff can show that they suffered an adverse employment action because of a protected characteristic—without regard to group membership. This change may lead to an increase in majority-group litigants bringing claims previously characterized as reverse discrimination. It is now much easier for these litigants to meet their prima facie burden, which will likely allow numerous plaintiffs to proceed to trial who would previously have had their cases dismissed on summary judgment.

Justice Thomas, joined by Justice Gorsuch, went further. In his concurrence, he argued that the McDonnell Douglas burden-shifting framework itself lacks textual support in Title VII and should be reconsidered in a future case. He criticized the framework form creating unnecessary complexity and for fostering inconsistent standards between cases involving direct and circumstantial evidence.

Justice Thomas’s critique is not new—he has long expressed skepticism about judge-made doctrines that stray from statutory text. But in Ames, his argument gained new traction. He noted that Title VII’s plain language requires courts to determine whether there is evidence of intentional discrimination, and that the burden-shifting approach may obscure that inquiry rather than clarify it.

If the Court were to adopt Justice Thomas’s view and eliminate the McDonnell Douglas framework, the implications would be profound:

• Simplified litigation: Plaintiffs would no longer need to navigate the three-step burden-shifting process. Instead, courts would focus directly on whether the evidence supports a finding of intentional discrimination.

• Increased judicial discretion: Without a structured framework, judges may have more latitude in evaluating the sufficiency of evidence, leading to less predictable outcomes.

• Impact on DEI programs: Justice Thomas’s concurrence may invite increased scrutiny of diversity, equity, and inclusion (DEI) initiatives. Programs that appear to favor minority groups could be challenged under the now-equal evidentiary standard for majority-group plaintiffs.

• Shift in summary judgment practice: The McDonnell Douglas framework has long served as a gatekeeping tool at the summary judgment stage. Its removal could result in more cases proceeding to trial, increasing litigation costs and risks for employers.

 Courts analyze employment discrimination claims under the Supreme Court’s framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in which the plaintiff is required to make an initial showing of discriminatory intent, after which the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment action. If the defendant makes such a showing, the burden shifts back to the plaintiff to present evidence that the defendant’s proffered reason is a “pretext,” or cover, for discrimination.

Erica L. Quigley is an Associate at Miller Johnson in the Employment and Labor practice group, focusing on management-side labor and employment counseling and litigation, as well as governmental legal matters. She advises clients on employment contracts, workplace policies, compliance with wage and hour laws, health and safety regulations, and employee discipline.
Quigley has successfully represented clients in state and federal courts on issues including discrimination, harassment, retaliation, FMLA, and constitutional violations. She counsels on traditional labor and election law matters. A graduate of Wayne State University Law School, Quigley has received multiple honors and serves as Co-Chair of the Labor and Employment Section of the Washtenaw County Bar Association. Quigley can be reached at 313-435-2323 or at quigleye@millerjohnson.com.
Adam M. Taub is a founding partner at Croson, Taub, & Michaels, PLLC where he is an advocate for workers. He specializes in all forms of workplace disputes, including wrongful termination, discrimination, harassment, whistleblower, non-compete, and wage and hour issues. Taub has also successfully represented public and private sector unions. He has represented numerous individuals and labor unions against employers in federal and state courts, as well as administrative agencies, including EEOC, OSHA, NLRB, and MERC. Taub can be reached at 734-519-0874 or at ataub@ctmlawyers.com.

Reprinted with permission from the Washtenaw County Bar Association newsletter Res Ipsa Loquitur.

I have observed advocates and mediators who are the epitome of professionals. From them I’ve learned what professionalism looks like in the practice of ADR, whether as advocates or mediators. This article is about what ADR participants can do to enhance their professionalism. In writing this article, I’m drawing on my passion for promoting legal professionalism and civility. 

Legal Professionalism and Civility

Legal professionalism and civility are not the same thing. Civility is a subset of legal professionalism. We know what civility is intuitively. It is treating everyone involved in the justice system with respect. The best view of civility is what almost everyone immediately accepts-the Golden Rule. As applied to lawyers, it is treating others as we want others to treat us. While lawyers are advocating vigorously for clients, it is helpful to remember that lawyers do not litigate without constraint.

The Professionalism Principles for Lawyers and Judges, Michigan Supreme Court Administrative Order 2020-23, contains a list of 12 Principles that describe professional behavior. The Order also provides commentary to further explain what the Principles look like in practice. To emphasize the Court’s role in promoting professionalism and civility, the 2020 Order is directed to both lawyers and judges-it is a partnership. And, because the Principles apply specifically to ADR, the participants in mediation are subject to the Principles. The concept of legal professionalism is not new, but we could use a reminder.

What is Legal Professionalism

Legal professionalism is broader than we might think.

It concerns the lawyer’s role in the justice system, including the promotion and defense of the rule of law. An in-depth discussion of the lawyer’s role in the justice system and defense of the rule of law is beyond the scope of this article.  However, it bears repeating that lawyers are the guardians of the justice system. 

What I am talking about here is more about dedication to doing what is necessary to demonstrate the highest standards of our profession, not the bare minimum. The Michigan Rules of Professional Conduct provide the floor for lawyer conduct. Many aspects of the Rule are also found in the Professionalism Principles for Lawyers and Judges. For example, the requirement of respect for those involved in the “legal process” may be found in Michigan Rules of Professional Conduct 6.5. The requirement of competence is spelled out in MRPC 1.1, which addresses legal knowledge and skill as well as thoroughness and preparation (the theme of this article). 

Because I view professionalism as representing the best of us, that is the area I’ll focus on in mediation practice.

Legal Professionalism and Mediation 

Just as professionalism is a partnership between judges and lawyers, mediation is a partnership between advocates and mediators. It requires the advocates to do their job together with the mediators doing their job. The focus of this article is on the advocates.

Frankly, some lawyers who participate in mediation don’t do their job as well as they could. To be professional, in my view, they should advance the following principles in ADR.

Understand the Process

Advocates should consider the process they are about to participate in. 

Yes, it is a negotiation. Does the lawyer understand that the mediation process, for example, starts before the mediation session? Has the advocate reviewed the applicable mediation court rules? Has the advocate considered that the nature of the opening offers is not to be trivially considered and that negotiating without much thought is counterproductive? Has the advocate considered how the mediator might be helpful during the mediation?

Preparation

The ADR professional should begin the mediation process well before the mediation and before a discussion with the mediator. It begins with a thorough understanding of the client’s case, starting with its strengths and weaknesses, the opposition’s strengths and weaknesses, and faces the tough issues head on. It does their client no good for counsel to minimize weaknesses of a client position, hoping for a magical cure to resolve them. Assessing the strengths and weaknesses of each side is a critical starting point of risk analysis.

It always seemed to me that the best preparation for the litigation of a case, and preparation for a meaningful mediation, begins at the end. 

• Does the lawyer know what a trial of the case might look like, the actual evidence that will be admissible, the list of witnesses, and who might testify? 

• Is there a significant motion for dismissal likely?

• Has the lawyer prepared an estimate of fees and expenses to take the case to and through trial?

• Has the lawyer considered whether they have obtained enough information to engage in a meaningful mediation?

• What information may yet be necessary? 

• And what additional information will be needed to try the case?

• Has the lawyer met with the client and discussed a risk analysis so that the client understands both the monetary and non-monetary burden and risks of taking a case to trial?

All of these actions help prepare both the client and advocate to participate in a meaningful mediation. Sometimes, counsel for a party wants the mediator to shoulder the burden of discussing the weaknesses with their client in caucus. Mediators should not be afraid to ask counsel how the mediator can assist the party’s representatives. Often, they will ask the mediator to provide their client with a “reality check”. 

Mediators know that many advocates come to mediation without any obvious signs of, or with limited, preparation. That means the mediator must spend time working with the parties to make sure they and their attorney are prepared to meaningfully negotiate.

• I have found that an important starting point with lawyers and their clients is making sure that they have fully considered the information they possess and the information they need but don’t yet have and how to get it. It is common to adjourn a mediation so that the parties can exchange additional information voluntarily. 

• Also, it is important for the mediator to be prepared to adjourn a mediation to permit the parties to obtain the information they think they need. The last thing any mediator wants is for a settlement to be second guessed because available and important information was not provided to a negotiating party.

I have often asked parties whether they feel they have sufficient information to meaningfully negotiate. Invariably the answer is yes. But, a few hours later, a party realizes it needs more information about a particular issue or issues. 

The mediation statement.

I have found that most mediators require a mediation statement in advance of a mediation. The statement is intended to prepare the mediator and inform the adversary and clients, of factual, legal, and damage positions.

I encourage the advocates to address the factual and legal positions and not put a damage demand in their statements. Of course, there should be an explanation of the loss by the plaintiff and damages caused by the loss.

There are a few other significant considerations of a mediation statement. The statements are often a window into the professionalism of the advocate. As a mediator, I am looking for the use of adjectives and adverbs. I have learned over time that the best professionals use adjectives and adverbs the least often. The strength of the statements depends on the facts and law presented, not on an argumentative tone.

The statements do not have to be long and most mediators will accept versions of motions to dismiss so the parties do not have to reinvent the wheel.

However, the statements that contain unnecessary and argumentative claims tell me that the mediation itself will require some discussion designed to focus on the merits of the dispute. And keep your exhibits to a concise minimum unless there is an important area of dispute which needs to be highlighted. Just attaching a 250 page transcript is a waste of time and money. If you have concerns about an important factual allegation, by all means raise it by attaching the relevant and necessary portions of the exhibit. But if there is no dispute concerning the existence of a fact, you don’t need to attach a copy of anything because the other side does not dispute it.

Mediators want the mediation process to be a civil discussion as best as possible. We all recognize that even the business cases we see can be emotional for the parties. Yet, yelling and screaming at the other side, in the statements, and in the actual negotiations are not helpful unless the point of the advocate is to demonstrate that the client is very emotional and the emotion will affect the negotiations. However, I prefer that the yelling and screaming be made in my presence and not joint sessions. I can relate to the adversary the intensity of a party’s emotions. 

Concession Strategy

Those advocates who have carefully considered an opening offer may not have thought further about the possible progress of negotiations.

It is valuable to have, again, considered the end point, i.e. the “bottom line” and how to get there. Mediators want to see progress in negotiations and help the parties exchange offers and counteroffers. However, there is a significant principle that the most professional advocates include in their style. As one of our great PREMi mediators, Paul Monicatti, describes it, the mediation process is better positioned to reach a settlement when the parties are engaged in “principled negotiations”. That is, the offers and counteroffers are not randomly or thoughtlessly selected and the reason for a new offer or counteroffer is logically explained. We know from experience that an offer or counteroffer that has no basis in reality will not be well received. 
And, if a few are made by a party, the chances of a meaningful mediation are reduced.

The point here is that advocates should be preparing for a mediation by including a discussion with the client about how to move through the mediation negotiations.

Conclusion

Having had the good fortune to observe wonderful, professional advocates and mediators, the following hard work before a mediation pays dividends:

1. Know the strengths and weaknesses of each side’s case and discuss them with the client—especially the weaknesses.

2. Think carefully about how the case will be tried including consideration of evidence and witnesses.

3. Determine whether there is enough information to have a meaningful mediation. If not, work to get the information.

4. Make the mediation statement straightforward and logical, describing the facts, law, and damages suffered or not suffered. Avoid flame throwing language.

5. Make sure that there has been consideration of, and discussion with the client of both the opening offer and the concession strategy.

6. Follow the Golden Rule in mediation statements and the negotiation process.

 _____________________

Michael S. Leib is a mediator and arbitrator with Leib ADR LLC in Bloomfield Hills, Michigan and specializes in the mediation and arbitration of complex business disputes including bankruptcy disputes, real estate disputes, professional liability disputes, employment disputes, and participated on the Alternative Dispute Resolution Council of the State Bar of Michigan, as well as on the Debtor Creditor Committee of the Business Law Section. 
He is the chair of the State Bar of Michigan Special Committee on Professionalism and Civility. 
Leib is on the Commercial Panel of the American Arbitration Association and member of PREMi, an organization of attorney dispute resolution experts who have numerous years of experience in both conflict resolution processes and subject matter knowledge in many industries and disciplines. 
Leib is  listed in The Best Lawyers in America and is AV-rated by Martindale-Hubbell. 
He received his B.A. from Kalamazoo College, his M.M. from the University of Montana, and his J.D. from Wayne State University Law School.

Most businesses don’t realize exactly when they stop operating like a startup and start functioning as an established organization. There is no announcement, no line on the calendar. The shift usually happens quietly, often right around the time the company prepares to bring on its tenth employee.

Most businesses don’t realize exactly when they stop operating like a startup and start functioning as an established organization. There is no announcement, no line on the calendar. The shift usually happens quietly, often right around the time the company prepares to bring on its tenth employee.

Why focus on ten employees? There is no federal employment law that suddenly takes effect at the ten-employee mark. 

The significance is practical, not statutory. Once a business grows beyond a handful of people, informal management stops working. Founders are no longer part of every conversation, decisions are made without shared assumptions, and small inconsistencies can create real legal exposure. Wage and hour issues become harder to monitor, confidentiality risks expand, and HR complaints often appear for the first time when a business reaches eight to twelve employees. 

In short, ten employees is the point where a company becomes complex enough that written policies move from optional to essential.

At this stage, a founder’s instincts and a few verbal ground rules are no longer enough to keep people aligned. Employees begin making decisions without the benefit of overhearing the leadership team. Departments form, roles blur, misunderstandings multiply, and the business faces risks that did not exist when four people shared a room and improvised their way through the day.

This is the moment, before employee number ten walks through the door, when every small business should put three foundational policies in writing. The goal is not to become “corporate.” The goal is to preserve stability, fairness, and clarity as the company grows.

1. A clear, modern employee handbook. (Because “we talked about it once” is not a policy)

Many small-business owners believe they do not need a handbook because “everyone knows how we operate.” 

That may work for the first few employees who learned the business while sitting next to the founders. Once the company reaches ten employees, people no longer learn by osmosis.

A strong handbook does not need to be lengthy. It should clearly address the issues that most often create tension, including:

• How employment works, including an at-will statement;

• Standards of conduct and what will not be tolerated;

• How performance concerns and complaints are handled;

• Attendance, scheduling, and time-tracking expectations;

• Technology and cybersecurity requirements;

• How time off actually works;

• A simple, safe process for raising concerns without retaliation.

The value of a handbook is not the document itself. It is the consistency it provides. When a difficult situation arises and an employee insists “no one ever told me that,” the handbook becomes your record, your clarity, and your protection.

2. A robust confidentiality and trade-secret policy (Because your business is worth protecting long before you are big enough to defend it)

Every business has information someone else would love to access. This includes customer lists, pricing strategies, sales processes, vendor relationships, product formulas, software code, operational methods, and market positioning plans.

Small companies are particularly vulnerable because they often rely on trust and informality. 

Courts, however, do not protect trade secrets based on trust. They protect them based on the steps a company takes to keep information confidential. If you do not treat something as proprietary, you cannot credibly object when someone walks out with it.

A well-drafted confidentiality and trade-secret policy defines what is confidential, who may access it, how it must be handled, and the consequences for misuse. It also provides a legal foundation for action if an employee attempts to take shortcuts or a competitor tries to capitalize on your work.

With non-compete agreements rapidly disappearing across the country, this policy has become one of the few remaining tools available to safeguard a business’s competitive advantage.

3. A Code of Conduct that reflects your culture (Not a generic list of corporate clichés)

Culture is what keeps a small business cohesive during growth. When the team is tiny, everyone absorbs the founder’s values simply by being in close proximity. As the company expands, that shared understanding disappears unless someone puts it in writing.

A Code of Conduct is your blueprint for how people interact. It should not sound like a template pulled from a corporate HR manual. It should reflect your voice and express the norms you expect your team to follow.

A practical and meaningful Code of Conduct addresses:

• Expectations around communication;

• Standards for professionalism and respect;

• How disagreements should be approached;

• When and how decisions are escalated;

• What accountability looks like;

• What “respecting the team” means in your environment.

This is not about micromanaging. It is about giving new hires a clear path to success, reducing unnecessary friction, and preserving the culture you worked hard to build.

Why these policies matter before you reach 10 employees

Crossing the 10-employee threshold signals three major chances:

1. Legal exposure expands quickly. Each new hire brings additional HR, wage-and-hour, and confidentiality risks.

2. Culture becomes more fragile. A single new employee can shift the identity of a small business.

3. Consistency becomes essential. What once felt like flexibility can quickly be misunderstood as favoritism or unfairness.

These policies create the guardrails that allow a company to grow without losing stability. They protect your brand, your people, and the business you have worked so hard to build. 

I have worked with many companies that waited until a crisis forced them to put policies in place. Every one of them later said the same thing: “We should have done this earlier.” The businesses that thrive are the ones that prepare before the pressure hits. Employee number 10 is your early warning bell. Put these policies in place now, and your future self will thank you.

The first two commentaries focused on Benjamin Franklin. This commentary will discuss an individual well known to Colonial leaders but less familiar in the present day: David Rittenhouse (1732-96). 

This is the third commentary in a series describing the perspectives of the Founding Fathers on “thinking like a scientist.” 

The first two commentaries focused on Benjamin Franklin. This commentary will discuss an individual well known to Colonial leaders but less familiar in the present day: David Rittenhouse (1732-96). 

Rittenhouse was “America’s Newton.”  A child genius and the son of farmers, Rittenhouse received only a basic education and thereafter self-taught.  At age 13, he mastered Newton’s calculus as well as the laws of gravity and motion.  

Rittenhouse would go on to construct models of paper mills, then working clocks, tools and as an adult, scientific instruments including two orreries – mechanical scale models of the Solar System – still in existence at Princeton and the University of Pennsylvania.

Rittenhouse’s report on the transit path of Venus in 1769 brought international fame as an astronomer.  The telescope he utilized to make the detailed observations was of his own making.  

An Oration “Promoting Useful Knowledge” that Rittenhouse delivered in February 1775 to the American Philosophical Society, which was originally founded by Benjamin Franklin, is the focus of this commentary.  

The Oration was later published in a pamphlet addressed to the delegates of the Continental Congress “to whom the future liberties and, consequently, the virtue, improvement in science, of America are entrusted.”  Each delegate received a personal copy.

The Oration is of value today because it presents Rittenhouse’s views – in his own words - of what it means to “think like a scientist.”

 Excerpts are set forth below. The headings are mine; the quoted text is from the Oration with guidance as to context and particular terms in brackets.

On the Relationship of Scientific Discovery to Religion  

“As truth is always consistent with itself, so many new proofs were furnished from time to time by new discoveries, that a mistaken interpretation of some passages in the Bible was compelled to give way to the force of astronomical evidence.

“Our religion teaches us what Philosophy could not have … But neither Religion nor Philosophy forbids us to believe that [the creator’s] infinite wisdom and power … may have frequently interposed in a manner quite incomprehensible to us, when [understanding] became necessary to the happiness of created beings.”

Implications with Respect to Other Worlds  

In the middle section of the Oration, Rittenhouse notes that advances in astronomy may include the discovery of planetary life elsewhere in the universe. He cleverly uses that possibility as a springboard to address several “hot-button” political issues.  

“How far indeed the inhabitants of the other planets may resemble man, we cannot pretend to say … If their inhabitants resemble man in their faculties and affections, let us suppose that they are wise enough to govern themselves according to the dictates that reason their creator has given them … Happy people!”

Rittenhouse then pivots to note that from the perspective of this “happy people,” existing governments on earth lack similar wisdom and proceeds to provide examples.

On Slavery and Racism

First, Rittenhouse speculates that “inhabitants of the other planets” may be “more happy still, that all communication with us is [currently] denied.  We have neither corrupted you with our vices nor injured you by violence …  None of your sons and daughters, degraded from their native dignity, have been doomed to endless slavery by us in America, merely because their bodies maybe disposed to reflect or absorb the rays of light, in a way different from ours.”

On Greed

Second, citing additional benefits resulting from the separation of worlds, Rittenhouse notes that “you [inhabitants of other worlds] are [also] effectively secured, alike from the rapacious hand of the haughty Spaniard, and of the unfeeling British nabob. Even British thunder [canons] impelled by British thirst of gain, cannot reach you.” [“British nabob” was a pejorative reference to “a conspicuously wealthy individual returning from India with a fortune.”]

On Luxury and Tyranny

As an example of “tyrannical” government actions on earth, Rittenhouse next cites the highly contentious British colonial acts, such as the Stamp Act.

These Colonial rules required Americans to import high-priced “luxury” goods through Britain rather than manufacture or obtain them elsewhere. 

They were then the subject of the incendiary colonial protests and boycotts that would spark the Revolutionary War only two months after the Oration was first delivered.

“Luxury and tyranny …  pretend at first to be the patrons of science and philosophy, but at length fail not effectively to destroy them; agitated by these reflections, I am ready to wish that nature would raise her everlasting bars between the new and old world; and make voyage to Europe as impracticable as one to the moon … Let our harbours, our doors, our hearts, be shut against luxury.”  

The Benefits of Science

In closing, Rittenhouse turns “to consider [the] happy effects of science, on the human mind … it is of great service to mankind, in banishing bigotry and superstition from amongst us … to dilate the heart with universal benevolence, and to enlarge its views.  

[Science] does this without propagating a single point of doctrine contrary to common sense, or the most cultivated reason. It flatters no fashionable princely vice, or national depravity. It encourages not the libertine by relaxing any of the precepts of morality.” 

Rittenhouse’s ambitions for science to have a central role in transforming American life were reflective of Revolutionary times.   

Historians suggest his idealism and optimism, in fact, influenced the selection of a circle of thirteen stars in the republic’s first flag symbolizing American democracy as a “new Constellation” in the progress of humankind.

Law, it seems, is changing rapidly at the state and federal level. It can be difficult to keep up with the transformation of entire areas of substantive law. There is a kind of reordering of things, which includes revisiting established precedents to correct perceived legal errors in prior rulings. 

Law, it seems, is changing rapidly at the state and federal level. It can be difficult to keep up with the transformation of entire areas of substantive law. There is a kind of reordering of things, which includes revisiting established precedents to correct perceived legal errors in prior rulings. 

The Michigan Supreme Court has distinguished itself nationally by taking a measured approach. Although the justices are popularly elected, the Court doesn’t appear to be actively looking for ways to take up controversial issues. The Court has shown a willingness to reexamine precedent, however. 

One case the Court should look at is Nehra v. Provident Life and Accident Company, 454 Mich. 110 (1997) involving the interpretation of disability insurance contracts for professionals like surgeons. 

If the case sounds unfamiliar, it is. 

Even seasoned Supreme Court advocates hadn’t heard of it. Nehra is rarely cited and even more rarely followed. Most cases that cite it, distinguish it. 

Nehra is a decision that proves again the old adage that ‘bad facts can make bad law.’  The problem with Nehra – in addition to being a bad decision – is that it serves to undermine the long-term financial security of professionals in certain industries, particularly medicine. 

In Nehra, the plaintiff, a dentist, filed an insurance claim with his long-term disability insurance carrier. His policy provided coverage in the event he could not regularly perform his specific occupation — dentist — if he became ill or he had suffered “injuries.” 

The issue in Nehra centered on what constitutes an “injury” in a disability insurance contract. The contract in Nehra states that the term “injuries” means “accidental bodily injuries occurring while your policy is in force.”  As contrasted with the term “sickness,” which under the contract “means sickness or disease which is first manifested while your policy is in force.” The contract did not define the term “accidental bodily injuries.” Nehra, 454 Mich. at 112.

In his application, the plaintiff listed “bilateral carpal tunnel syndrome” as being one of the causes of his disability along with “duodenal ulcer with hemorrhage.” His claim was approved, and he began collecting benefits. 

The decision suggests that Nehra had not realized that his disability contract made a distinction regarding the cause of his disability. Under the contract, if his disability were a “sickness,” his monthly benefits would end at age 65. If his disability stemmed from “injuries,” on the other hand, he could receive benefits over a lifetime. 

After collecting benefits for years, Nehra attempted to change the cause of his disability to “injury” from “sickness.” Nehra argued that his diagnosis of carpal tunnel syndrome was the result of a series of repetitive motion injuries that qualified him for the lifetime benefit under the “injuries” provision of his contract. The medical record on this point was seemingly underdeveloped.

Nehra’s claim was denied, and a lawsuit followed. The trial court dismissed his case, but the Michigan Court of Appeals reinstated it, finding there was an issue of fact as to the cause of Nehra’s disability. From there, the Supreme Court granted leave and reversed the Appeals Court reinstating the dismissal. 

The Supreme Court reasoned that the case was governed principally by two statutes that have nothing to do with disability insurance. 

First, the Supreme Court looked to the provisions of the Worker’s Disability Compensation Act to determine the meaning of the word “injury.”  The Court also looked to Michigan’s No-Fault Act to determine the meaning of an “injury.”  

The concept of a repetitive motion type injury was not supported by the Court’s reading of either statute. The Court found that an “injury” was a precipitating event that led to the claimant’s condition, not a pattern of micro-injuries over a sustained period of time.

Other courts have rejected this analysis. One federal court wrote that it had never heard of a “repetitive motion sickness.” Chapman v. Unum Life Ins. Co. of America, 555 F. Supp. 3d 713, 724 (D. Minn. 2021).

Nehra is not a particularly strong or persuasive decision, and upon closer examination, its underlying analysis is flawed. 

Both the Workers Compensation Act and the Michigan No-Fault Act are statutes that regulate mandatory insurance systems. The two statutes cited mandate that individuals and businesses purchase specific forms of insurance, and the cited laws create a uniformity among huge segments of the state’s population. 

A private disability contract is a contract that is voluntary and its purchase is discretionary. The terms that govern the contract are between the two contracting parties, and Michigan does not regulate the definitions that appear in a disability insurance contract. 

The Nehra case is an outlier and makes little sense in our modern, professional world. 

Here’s an example. Nehra is routinely cited to try to defeat the legitimate claims of surgeons who have suffered spinal injuries during the practice of their profession. Surgeons experience a significantly higher rate of spinal problems compared with the general population. 

By some estimates, nearly 75% of all surgeons suffer from back problems. Some surgical specialties have a rate of spinal injuries as high as 65% of the entire occupational category. And this is a growing trend. 

With the consolidation of medical practices, the specialization of surgical practices, and increased patient need, surgeons are seeing their caseloads increase. The more surgeons work, the greater the risk of injury to their own spines. 

Compounding matters, surgeons work in physical positions where their bodies are contorted for long periods of time; further, they are required to wear equipment necessary to perform surgery, including magnetic loupes and heavy, protective lead aprons. 

Collectively, this contributes to putting pressure on the neck and back and often results in spinal injuries over time. Undoubtedly, their medical conditions are caused by “injuries,” not illnesses.  

Nehra is a little known, rarely cited case; yet, it increasingly hangs out there as an impediment for legitimately disabled medical professionals within our state who entered into expensive disability contracts in the good faith understanding that their injuries (not just narrowly defined ones), would be covered. 

Nehra is not good law, comparatively speaking, and serves little purpose to continue. The Michigan Supreme Court should give it another look and consider overruling it. 


______________________

John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

Activists are collecting signatures for a proposal, possibly for a November 2026 vote, that would amend the state constitution to add a new rate in the state income tax. This would give Michigan the seventh-highest rate in the country; fourth-highest if you include Detroit’s city income tax.

Activists are collecting signatures for a proposal, possibly for a November 2026 vote, that would amend the state constitution to add a new rate in the state income tax. This would give Michigan the seventh-highest rate in the country; fourth-highest if you include Detroit’s city income tax.

It would also do serious damage to Michigan’s already frail economy by hurting businesses and punishing job creators. But there are more than just practical reasons to oppose a select tax hike. The proposal would violate basic constitutional principles that ought to matter to all of us.

The proposal would raise the state’s income tax rate from 4.25% to 9.25% for single taxpayers who earn more than $500,000 and for joint filers who earn more than $1 million. It’s a small number of people, around 18,300 households, according to the latest figures from the Internal Revenue Service. That’s only around 0.3% of all tax filers in Michigan.

These taxpayers would pay 48.65% of what they earn, split among federal, state and local governments. It’s downright un-American to tax half of what someone earns.

This small number of taxpayers has a large effect on the state economy. The bulk of high earners in Michigan are not movie stars or athletes. They’re business owners. High-earning households claim 90% of the flow-through credits available when business owners pay taxes through Limited Liability Companies, S-corporations and other partnerships. And they pay 33% of the self-employment taxes. They wouldn’t pay $1.5 billion in income taxes on their businesses — equivalent to 15% of the total income taxes — if they didn’t employ a lot of other people in Michigan.

A confiscatory tax will scare a lot of business owners out of the state, and cause more hesitation about moving here. That ought to be enough to get people to realize that the proposal is bad policy. Still, there are broader reasons why they should oppose select tax hikes. It’s just not how taxes should work in a government run for the public’s benefit.

The government is supposed to do only things that people think serve the public. That includes right now a number of charitable activities — helping people who need it afford food and medical care — and also everything else the state does. The state government ensures education for all children in the state, it enforces state law and incarcerates criminals, it keeps and maintains a system of public rights-of-way and more. This costs money. Taxes are supposed to be the acceptable way to pay for services that elected officials have decided will 
benefit the public.

That’s not to say that everything the state does justifiably serves public purposes. The state’s ineffective business subsidies are a waste of money and serve private purposes rather than the public interest. Pork projects go to serve local and private purposes rather than the people of Michigan, a point we’re arguing in court.

Taxes levied on the public for the public good have to be levied in fair ways, and that means they have natural limits. “There are certain limitations upon this power,” Michigan Justice Thomas Cooley noted, “not prescribed in express terms by any constitutional provision, but inherent in the subject itself.” That is, the taxes levied by governments are subject to rules beyond those in the state and federal constitutions.

One of those rules is that taxes must be apportioned fairly, and not, as Cooley wrote, “arbitrarily or by caprice, so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest.”

The tax hike proposal unjustly picks out a segment of the population and levies punishing taxes on them. “Fund Schools. Tax the Rich. Protect the Democracy,” its advocates proclaim. This view suggests that a small segment of the population harms the state and must be punished with taxes.

(Schools in Michigan already get an average of $23,700 per student from federal, state and local funding, by the way.)

Tax policy should be about fairly and equitably raising money for government services. It should not punish a small number of people for their success. 

The proposal would harm the state’s economy, but it also violates basic principles of fairness and should rub all Michigan earners the wrong way.


James M. Hohman is the director of fiscal policy at the Mackinac Center for Public Policy.