Employers, Take Note: Transferring an Employee to Another Position with the Same Rank and Pay May Now Get You Sued Under Title VII

The range of employment decisions subject to Title VII scrutiny continues to grow.  As discussed in previous posts, the Fifth Circuit recently overturned its prior precedent limiting Title VII discrimination claims to “ultimate employment decisions,” finding that Title VII’s protections extend to any adverse employment action that materially impacts the “terms, conditions, and privileges” of employment.  Now, the United States Supreme Court has lowered the bar even further for Title VII plaintiffs complaining about discriminatory job transfers.

“Terms, Conditions, or Privileges”: Fifth Circuit Applies New Hamilton Standard to Find Potential Discrimination in School District’s Failure to Pay for Superintendent Leadership Academy

As mentioned in our prior post about the Fifth Circuit’s August 2023 opinion in Hamilton v. Dallas County, employees no longer must allege discrimination in an “ultimate employment decision” to state a claim under Title VII. Instead, Hamilton established a new standard more closely tied to the statutory language of Title VII that allows employees to state a viable Title VII discrimination claim based on allegations that they faced discrimination in any “adverse employment decision.” Under Title VII, actionable “adverse employment decisions” include discrimination in hiring, firing, compensation, or in the “terms, conditions, or privileges” of employment.

In light of the new Hamilton standard, questions arose as to what kinds of adverse employment decisions would give rise to actionable Title VII claims. In its post-Hamilton case of Harrison v. Brookhaven School District, 82 F.4th 427, the Fifth Circuit provided some guidance as to what constitutes an actionable “term, condition, or privilege” of employment.

The Fifth Circuit Reconsiders What Workplace Actions May Form the Basis of a Discrimination Claim

The Fifth Circuit Court of Appeals could soon broaden the scope of employment actions that may serve as grounds allowing an employee to file a discrimination claim. Currently, Fifth Circuit precedent requires plaintiffs to show they experienced a discriminatory ultimate employment decision, such as being hired, granted leave, discharged, promoted, or compensation issues. Those who claim they suffered other discriminatory conduct that falls short of the “ultimate” action bar cannot pursue a discrimination claim. The Fifth Circuit, however, may be in the process of reconsidering and eliminating that requirement.

Federal law under Title VII and the Age Discrimination in Employment Act (ADEA)—as well as parallel Texas state anti-discrimination law—prohibits employers from discriminating against any person with respect to their compensation or the “terms, conditions, or privileges” of their employment on the basis of the employee’s race, color, religion, sex, age, or national origin. The Fifth Circuit’s decisions—unlike most other federal courts nationwide—have limited the availability of discrimination claims to circumstances when an employee experiences an “adverse employment action” that constitutes an “ultimate employment decision.” In other words, Fifth Circuit precedent strictly defines and limits the types of events that alter the “terms, conditions, or privileges” of employment. The Court has repeatedly held that “ultimate employment decisions” only include events such as hiring, granting leave, discharging, promoting, or compensation. A plaintiff who has not experienced one of these adverse employment actions cannot bring a discrimination claim in Texas federal or state courts.

Just in Time for Veterans Day, Federal Agencies Provide Military Service Members and Veterans with Guidance on Unlawful Employment Discrimination

On November 10, 2022, the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor Veterans’ Employment and Training Service, and the U.S. Department of Justice Civil Rights Division jointly released a comprehensive resource document detailing federal laws and other authorities that specifically protect service members and veterans from workplace discrimination.  In its press release, the EEOC described the jointly authored “Protections Against Employment Discrimination for Service Members and Veterans” as the first-of-its-kind single publication intended to “help veterans and service members determine which laws and federal agencies are responsible for enforcing their workplace rights and where to seek assistance if they believe those rights have  been violated.”

Just How Hard is it to Prove Pretext? SDTX Holds that EEOC “Cause” Finding and Allegations of Falsified Evidence are Not Enough

On August 30, 2022, the Southern District of Texas issued its opinion in Love v. University of St. Thomas, a case that highlights the significant burden that employees must overcome in the burden shifting analysis used by courts in employment discrimination and retaliation claims.  In the absence of direct evidence of discrimination or retaliation, courts follow the United States Supreme Court’s McDonnell-Douglas framework to determine whether an employer engaged in illegal conduct.  Under this framework, an employee challenging an adverse employment action must first establish a prima facie case of discrimination or retaliation before the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action taken.  Once the employer proffers such a reason, the burden shifts back to the employee to show that the stated reason is a pretext for discrimination or retaliation.