This article was originally published in Law360 on October 14, 2025, and is republished here with permission.
The U.S. Supreme Court‘s June 2024 ruling in Loper Bright Enterprises v. Raimondo went against decades of precedent requiring federal courts interpreting federal regulations to defer to the agencies responsible for publishing, enforcing and interpreting those regulations.
Upending what was once considered settled law, Loper Bright eliminated so-called Chevron deference, under which administrative interpretation of ambiguous statutory language has been afforded judicial deference since the Supreme Court’s 1984 decision in Chevron USA Inc. v. Natural Resources Defense Council.
The Supreme Court’s decision in Loper Bright has led to much speculation as to how lower courts would treat agency regulations, particularly as it relates to the agencies that are charged with administering and enforcing federal employment laws.
More than a year later, we are just now seeing the effects of Loper Bright on judicial deference — or a lack thereof — on the regulations enacted by the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor and the U.S. Department of Justice in recent decisions issued by federal circuit courts.
Since the enactment of Title VII of the Civil Rights Act, the EEOC has been the primary agency tasked with enforcing the discrimination and retaliation protections that are afforded to American workers under Title VII.
As a refresher, Title VII protects employees from discrimination in the workplace on account of their race, color, religion, sex and national origin, and from retaliation due to engaging in protected activity regarding Title VII rights.
Similarly, the Family and Medical Leave Act tasks the DOL with interpreting and enforcing the unpaid leave benefits that are provided under that statute for eligible employees.
Further, the Americans with Disabilities Act includes both the EEOC and the DOJ as agencies that are authorized to promulgate regulations to enforce relevant portions of the ADA.
While statutes like Title VII, the FMLA, the ADA and others are the backbone of employment law, the EEOC, the DOL and the DOJ have played pivotal roles in shaping the day-to-day decisions of employers by acting both as an adviser and an initial adjudicator regarding the application of the protections that are afforded by the statutes they interpret.
In the wake of Loper Bright, however, EEOC, DOL and DOJ regulations are but some of the many agency resources that while previously relied on, may no longer be so reliable.
In an emerging circuit split, the U.S. Court of Appeals for the Sixth Circuit has taken a hard line stance against deferring to agency regulations when interpreting applicable employment statutes, while the U.S. Court of Appeals for the Third Circuit has more carefully toed the line.
This is likely the tip of the iceberg, leading to uncertainty and inconsistent application of agency regulations across the nation. Read on for a summary of the existing decisions and interpretations, and guidance on what to do as this area of law continues to evolve.
Circuit Split
第6巡回区
The Sixth Circuit has not hesitated to use Loper Bright to disregard well-established EEOC guidance and apply its own interpretation of federal employment law. Its application of Loper Bright signals a willingness to embrace judicial authority to independently interpret federal statutes.
Bivens v. Zep Inc.
The plaintiff in Bivens v. Zep Inc. sued her employer under Title VII, alleging that she was subject to unlawful harassment by a company client and arguing that Zep should be held liable for the client’s harassment.
On Aug. 8, the Sixth Circuit affirmed the U.S. District Court for the Eastern District of Michigan‘s grant of summary judgment for Zep, finding that Zep was not liable for the client’s harassment.
The Sixth Circuit undertook an independent analysis of Title VII’s statutory language and determined that Zep must have intended for its client’s harassment to occur in order to be liable for the harassment.
In doing so, the Sixth Circuit departed from a long-standing EEOC regulation, Title 29 of the Code of Federal Regulations, Section 1604.11(e), that deemed employer negligence sufficient to hold an employer liable for workplace harassment committed by a nonemployee.
The court dismissed the EEOC’s regulation as mere interpretive guidance that had no controlling effect on courts under Loper Bright.
The decision departed not only from long-standing EEOC regulatory standards, but also from other circuits’ interpretation of the same. Most other circuits that considered the application of Section 1604.11(e) before Loper Bright, including the U.S. Courts of Appeal for the First, Second, Eighth, Ninth, Tenth and Eleventh Circuits, have applied the EEOC’s negligence standard.[1]
While no other circuits have yet interpreted the regulation under Loper Bright, the Sixth Circuit’s decision, meanwhile, creates a circuit split as to an employer’s standard of liability for a third party’s harassment of its employee.
The Sixth Circuit’s decision illustrates the practical effect of Loper Bright — a patchwork of different judicial interpretations of the same statutory or regulatory language, creating additional uncertainty for employers that operate in multiple circuits.
Third Circuit
The Third Circuit has repeatedly commented on the potential impact of Loper Bright, addressing it in at least three relevant cases over the past year. In no case has reliance on Loper Bright been dispositive — instead, the analyses read more like warning shots to employers and employees alike that the tides may be turning.
Coleman v. Children’s Hospital of Philadelphia
The plaintiff in Coleman v. Children’s Hospital of Philadelphia, a nurse supervisor, was fired from her job at the hospital following medical leave. She sued, alleging disability discrimination and retaliation under the ADA, and retaliation under the FMLA.
The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment for the hospital, which the Third Circuit affirmed on Oct. 15, 2024.
In its decision, the court questioned whether the motivating factor causation standard for FMLA retaliation claims previously applied within the Third Circuit — which is based on a DOL interpretation, not the statutory language of the FMLA — and whether it “withstands the Supreme Court’s decision in Loper Bright.”
The court avoided ruling on this basis because the plaintiff’s claim failed even under the lesser standard, but warned that bigger changes may lie ahead in similar cases that rely on DOL interpretations of the FMLA.
Ginder v. Commissioner of Social Security
In Ginder v. Commissioner of Social Security, the plaintiff appealed the Eastern District of Pennsylvania’s affirmance of the denial of her application for disability benefits.
On Jan. 29, the Third Circuit vacated and remanded the district court’s order, because it could not determine the basis for the Social Security Administration‘s administrative law judge’s finding.
Concurring, U.S. Circuit Judge David Porter agreed that there was an inadequate explanation in the opinion at issue. Additionally, he explored whether, in the wake of Loper Bright, it remains legally conclusive that obesity is a disability under either SSA regulations or the ADA.
Historically, SSA regulations form the basis for finding that obesity is a disability in relation to disability benefits. Similarly, while the ADA defines a disability as requiring “a physical or mental impairment,” impairments are further defined by EEOC regulations as “physiological.”
Cases interpreting both the ADA and the accompanying EEOC regulations have tended to conclude that obesity alone is not a physical impairment under the ADA, because it, without more, does not equate to a physiological disorder.
Post-Loper Bright, Judge Porter recommends relying not on regulations, but on statutory text, writing that “future cases should treat obesity consistent with the text of the benefits statute.” This caution, too, falls short of rooting a decision in Loper Bright, but instead warns that the analysis could and should be changing.
Zangara v. National Board of Medical Examiners
In Zangara v. National Board of Medical Examiners, the plaintiff, a medical student proceeding pro se, alleged that the scoring methodology that the board used on examinations violated the ADA.
The Eastern District of Pennsylvania dismissed his suit, which the Third Circuit affirmed on April 28. The salient issue was whether the plaintiff stated a viable ADA claim against the board.
Ultimately, the court found that the plaintiff’s claim failed because he did not allege either that he ever sought — let alone was denied — an accommodation, or that the exams administered by the board violated the ADA.
While discussing relevant regulations — specifically public accommodation regulations under Title III of the ADA, promulgated by the DOJ — the Third Circuit, quoting prior precedent, again hedged that they are not deciding whether these regulations continue to have “the force and effect of law” following Loper Bright.
However, it quoted Loper Bright, noting that even under that ruling, “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”
In each of these three cases, the Third Circuit takes the approach of reminding litigants that the standards may be changing without offering guidance as to if, or how much, prior standards will be modified.
They acknowledge the Supreme Court’s admonition in Loper Bright — that courts should not defer to agency rulemaking if a statute is ambiguous — yet await something additional or more specific, including appropriate factual circumstances, before deeming statutes ambiguous and declining to defer to agency rulemaking.
It is unclear what, exactly, the Third Circuit is waiting for, but it is clear that Loper Bright alone is not sufficient for the Third Circuit to wholesale disregard implementing regulations from relevant agencies.
Continued Reliability of Agency Regulations
The Third and Sixth Circuits’ differing approaches to Loper Bright‘s application to employment regulations leave little certainty for employers and employment counsel as to which agency regulations remain in play.
What is clear, however, is that statutory text is now viewed by courts as the most relevant authority on any particular subject — not the regulatory framework that has been adopted by the agencies tasked with enforcing the statutes.
Still, Loper Bright, and the Third and Sixth Circuits’ decisions since then, show that courts are now more poignantly focused on whether agency regulations are supported by the relevant statutory scheme. These decisions also reflect a reliance on the plain language of the applicable statute, as opposed to the corresponding regulatory framework.
This opens the door to more direct judicial interpretation of ambiguous statutory language that may, as in Bivens, be contrary to decades of agency regulations. Regardless, employers should keep in mind that agency regulations are still exactly that — regulations.
Notwithstanding the developing case law post-Loper Bright, until a federal court rules that a particular agency regulation is inconsistent with relevant ambiguous statutory language that an agency is charged with administering, agency regulations interpreting and implementing federal employment law continue to apply, and, at the very least, provide helpful direction to employers and their counsel in navigating complex legal and factual issues.
Employers should continue to consult agency regulations, but they should be cautious about relying exclusively on such regulations. Careful analysis of EEOC, DOL, DOJ, SSA and other agency regulations alongside the relevant statutory language is important to determine compliance with federal law.
Employers operating in multiple states should also be aware of inconsistent judicial interpretations across the country that create new standards in different jurisdictions.
結論
This is an area to continue watching as district and circuit courts grapple with the impact of Loper Bright. There is a particular impact in the employment space, given the prevalent role of regulations from agencies like the EEOC, DOL and DOJ in implementing federal employment law.
These circuit-by-circuit decisions, and their inconsistency, present challenges for multistate employers. Relying as much as possible on the statutes themselves, and not relying exclusively on regulations, is the best path forward while decisions continue.
[1] See Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998); Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013); Crist v. Focus Homes Inc., 122 F.3d 1107, 1108 (8th Cir. 1997); Folkerson v. Circus Circus Enters. Inc., 107 F.3d 754, 756 (9th Cir. 1997); Lockard v. Pizza Hut Inc., 162 F.3d 1062, 1074 (10th Cir. 1998); Watson v. Blue Circle Inc., 324 F.3d 1252, 1259 (11th Cir. 2003).
