U.S. Supreme Court Watchlist: On the eve of Title VII’s 60th Birthday, the Court Re-Examines the Standard for the Statute’s Ban on Employment Discrimination
Follow us on LinkedIn to see future News.
Helena I. Poch Ciechanowski
February 1, 2024
On its face, Title VII of the Civil Rights Act of 1964 (Title VII) contains a bright line rule for employers about unlawful employment practices. Specifically, Section 703(a)(1) of Title VII says:
Employer practices
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
How can employers avoid liability under Title VII? The answer seems really simple: Don’t treat similarly-situated employees differently on the basis of a protected characteristic. This standard is not new—originally passed in 1964, the law will celebrate its 60th birthday this year (2024).
Not so fast. Despite Title VII’s patently straight-forward language, current, former, and would-be employers across the country regularly face claims brought by employees and job applicants who allege that they were discriminated against or disparately treated on the basis of their race, color, religion, sex, or national origin. Many of these cases proceed; others are dismissed without a trial on the merits. After all, the law (as developed by courts across the United States over the last 60 years) does not question every employment decision, and it permits some differences in treatment, as long as the impact to protected employees is de minimis or immaterial.
So when does discrimination in the workplace become actionable and compensable under Title VII?
The U.S. Supreme Court is poised to address this very issue in the case of Muldrow v. the City of St. Louis, Docket No. 22-193, which was argued before the country’s highest court on December 6, 2023. At issue in Muldrow is the dismissal of Title VII claims asserted by an experienced female police sergeant who was unilaterally transferred from a job in the St. Louis Police Department’s Intelligence Division (where she had been working for nearly a decade) to a job in the Fifth District, purportedly resulting in a job with the same regular pay, but changes to “her schedule, responsibilities, supervisor, workplace environment, and other job conditions and benefits.” After the first transfer, Muldrow sought and was denied another transfer that she alleges would have afforded her additional prestige, networking opportunities, increased compensation, and other benefits. Muldrow filed suit, alleging sex-based discrimination in violation of Title VII, but the U.S. District Court for the Eastern District of Missouri dismissed Muldrow’s claims, finding that Muldrow could not prevail because she did not prove that she suffered “an adverse employment action” that caused her “a material employment disadvantage.” The U.S. Court of Appeals for the Eighth Circuit agreed, prompting the appeal to the Supreme Court on whether a worker can prevail on Title VII claims with a showing of employment discrimination, alone, or whether Title VII requires “an additional showing of a ‘significant disadvantage’ or other heightened harm.”
The timing is ripe for the Supreme Court to decide this issue now, as over the last several years, federal courts have been quietly expanding the right of workers to sue for workplace bias and discriminatory actions under Title VII.
Specifically, last August, the full en banc (on the bench) panel of the U.S. Court of Appeals for the Fifth Circuit reversed an earlier ruling by a three-member panel of the same court, and eradicated long-standing Fifth Circuit precedent requiring workers to demonstrate that they were impacted by an “ultimate employment decision” to proceed with an employment discrimination claim under Title VII. Instead, the court in Hamilton v. Dallas County, Case No. 21-10133, ended the “interpretive incongruity” between the text of Title VII and the dismissal of cases involving unequivocal discrimination, finding that a broader range of employer actions affecting the terms, conditions, and privileges of employment—not just actions impacting hiring, firing, leaves of absence, and compensation—can form the basis for a viable claim under Title VII. To prevail under the Fifth Circuit’s new standard, an employee or job applicant need only show that they were subjected to “workplace bias” on the basis of a protected characteristic, which is similar to the standard promoted by the plaintiff in the Muldrow case before the Supreme Court.
The Hamilton decision arose from a Dallas County Sheriff’s Department scheduling policy that allowed male correctional officers to take full weekends off, but required female correctional officers to work one day each weekend. Nine corrections officers sued, alleging that the scheduling policy violated Title VII protections against sex-based discrimination. A lower court dismissed their claims. On appeal, a three-judge panel felt compelled to uphold the dismissal because the correctional officers could not prove the Jail made “an ultimate employment decision,” but the panel implicitly urged the en banc court to re-hear the case and “align [the Fifth] circuit with Title VII’s text.” On re-hearing, the full court reversed the lower court and panel decisions, eliminating the “ultimate employment decision” requirement on the basis that the text of Title VII does not contain this language anywhere, and noting that the requirement itself arose from a misunderstanding of a decision of the U.S. Court of Appeals for the Fourth Circuit in 1981. Accordingly, once the erroneous requirement was removed, the correctional officers “plausibly alleged discrimination with respect to [their] terms, conditions, or privileges of employment,” and their Title VII claims could proceed.
The Hamilton court is not alone. The Fifth Circuit’s decision cited and followed the reasoning of a “strikingly similar” case decided in 2021 by the U.S. Court of Appeals for the Sixth Circuit in Threat v. City of Cleveland, No. 20-4165, which held that a group of black Emergency Medical Service (EMS) Captains could assert Title VII claims against their employer (the City of Cleveland) when the City’s EMS Commissioner changed work shifts and assignments to diversify the racial composite of the Captains supervising the day shift. The Threat court acknowledged that the City failed to dispute the racial basis for the City’s employment action; the only disputes were whether the action related to “terms, conditions, or privileges of employment,” and whether it was “adverse and material” (e.g., not de minimus). The court reversed the lower court, rejecting the City’s argument (supported by a litany of other Title VII cases in the Sixth Circuit) that discrimination in shift assignments can never rise to the level of “actionable discrimination.” The court noted that “employer-required shift changes from a preferred day to another day or from day shifts to night shifts exceed any de minimis exception, any fair construction of the anchoring words of Title VII, and for that matter any Article III injury requirement.” The court further held that “[n]ot all shift changes are the same” and “[w]hen an employee’s race is a basis for a shift change that denies the privileges of that employee’s seniority, the employer has discriminated on the basis of race in the terms and privileges of employment.” In so ruling, the Threat court also rejected the argument that “actionable discrimination” requires the claimant to suffer economic damages from the different treatment.
The year after the Threat decision was issued, the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit heard the case of Chambers v. District of Columbia, No. 19-7098. Chambers was a law clerk, Support Enforcement Specialist, and Investigator in D.C.’s Office of the Attorney General, who complained about having a larger caseload than her colleagues and requested multiple transfers to other positions within the Office, all of which were denied while similar requests were granted to male colleagues. After more than 20 years with the Office, Chambers filed suit, alleging discrimination and retaliation in violation of Title VII. The federal district court dismissed these claims, concluding that Chambers must demonstrate not only a discriminatory motivation for the employment actions, but also that the employment actions caused her “objectively tangible harm.” A D.C. Circuit panel upheld the dismissal on appeal, noting that they were bound by the D.C. Circuit’s 1999 decision in Brown v. Brody, which created the “objectively tangible harm” standard, but the panel members wrote separately to express reservations about the ongoing applicability of that requirement. On re-hearing, the en banc D.C. Circuit Court expressly overturned the Brown decision, finding that Title VII discrimination claims do not require a showing of “tangible harm,” and holding:
[A]n employer that transfers an employee or denies an employee’s transfer request because of the employee’s race, color, religion, sex, or national origin violates Title VII by discriminating against the employee with respect to the terms, conditions, or privileges of employment.
Taken as a whole, the Chambers, Threat, and Hamilton cases reflect a wave of judicial decisions to expand the scope of Title VII protections, which will crest or dissipate based on the Supreme Court’s decision in Muldrow. Employers across the country should be aware that Title VII claims may soon be easier to bring, and may soon cover adverse actions involving workplace conduct such as recommendations, performance evaluations, project assignments, office locations, shift changes, job transfer requests, and support staff allocations.
*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
