Takeaway: This decision reminds employers that Title VII covers a wide range of employment decisions beyond the most salient moments in a person's work life. The decision also highlights the uncertainty caused by courts' varying interpretations of Title VII's statutory text. Employers should stay tuned for the Supreme Court's decision in Muldrow v. City of St. Louis, interpreting what level of workplace harm Title VII makes actionable. The forthcoming ruling is expected to have a seismic impact on workplace decisions for years to come.
The 5th U.S. Circuit Court of Appeals recently ruled that actionable claims under Title VII of the Civil Rights Act of 1964 extend beyond "ultimate employment decisions."
The 5th Circuit concluded a plaintiff, a black woman, pleaded sufficient facts to show that she experienced an employment decision within the scope of Title VII, satisfying what is often referred to as the "adverse action" element of a Title VII claim of disparate treatment. A similar case is currently before the U.S. Supreme Court.
In the case that reached the 5th Circuit, the plaintiff, a school administrator, brought a discrimination claim on the basis of race and sex against a Mississippi school district under Title VII and 42 U.S.C. Section 1981 - statutes that courts interpret consistently with one another. The plaintiff challenged the school district's decision not to pay for her attendance at a training program for prospective school superintendents while allegedly paying the cost for similarly situated white, male employees to attend the program. The plaintiff registered for the program in reliance on the defendant's initial promise to pay her fees but ended up paying the $2,000 cost herself after the defendant didn't fulfill its promise.
On Sept. 15, 2021, the district court granted the school district's motion for judgment on the pleadings, concluding the plaintiff failed to state a viable claim under Title VII because she did not point to any "ultimate employment decision." Under 5th Circuit precedent at the time, Title VII discrimination claims must involve an "ultimate employment decision" such as whether to hire, discharge, promote, grant leave or increase pay. The district court likened the defendant's denial of payment for the plaintiff to attend the program to a denial of training, which prior courts held not to be an "ultimate employment decision." The 5th Circuit reversed the district court's ruling in light of a major change in the court's precedent.
Weeks earlier, on Aug. 18, the 5th Circuit in Hamilton v. Dallas County abandoned the "ultimate employment decision" standard as too narrow an interpretation of Title VII's text. The statute makes it unlawful for an employer to discriminate regarding "compensation, terms, conditions or privileges of employment," but leaves such terms undefined. The 5th Circuit reasoned that "terms, conditions or privileges of employment" capture a broader range of employment decisions than the former "ultimate employment decision" standard recognized.
The court in the more recent case addressed an issue left open in Hamilton: What is the minimum level of workplace harm a plaintiff must allege on top of showing an impact on their "terms, conditions, or privileges of employment" to state a viable claim of disparate treatment?
On this point, the 5th Circuit held that a challenged employment action must involve a "meaningful difference in the terms of employment and one that injures the affected employee" beyond a "de minimis" injury. Applying this standard to the facts, the court concluded that the leadership training program was a privilege of employment within the meaning of Title VII and the defendant's failure to pay for the plaintiff's attendance was not a de minimis injury. Upon holding that the plaintiff plausibly alleged a harm within the scope of Title VII, the court reversed and remanded the district court's decision.
The 5th Circuit is not alone in its efforts to define what actions may constitute workplace discrimination for Title VII purposes. The Supreme Court has agreed to review the 8th Circuit's opinion in Muldrow v. City of St. Louis to address whether Title VII prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage. The Supreme Court is expected to issue a ruling by June 2024.
Harrison v. Brookhaven School District, 5th Cir., No. 21-60771 (Sept. 21, 2023).
Kathryn Brown is an attorney with Duane Morris LLP in Philadelphia.
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