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.

There’s A[nother] New Accommodation Standard in Town: Supreme Court Unanimously Rejects De Minimis Cost Test for Title VII Religious Accommodations, and Confirms Limitations on Coworker Impact Evidence in Undue Hardship Analysis

As we wrote earlier this year, the United States Supreme Court agreed to consider a case challenging the standard by which an employer may refuse to accommodate an employee’s religious beliefs.  Since the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, many lower courts have held that employers could deny a requested religious accommodation if providing it would result in “more than a de minimis cost.”  For years, critics have argued that the de minimis cost test does not appear anywhere in the language of Title VII, and effectively eliminates the statute’s protections against religious discrimination.  On June 29, 2023, a unanimous Supreme Court agreed.

LEGAL 101: The Standard for Title VII Religious Accommodations May Be Changing, and Every Employer Should be Paying Attention

It’s no secret that the current majority on the United States Supreme Court is focused on expanding certain religious liberties.

In Kennedy v. Bremerton School District, the Court significantly expanded religious freedoms in the First Amendment context when it held that a school district could not discipline a football coach for publicly engaging in prayer on the football field immediately after games.  The Court’s opinion rejected decades’ worth of cases that had attempted to balance the competing rights secured by the Free Exercise Clause and the Establishment Clause, and also demonstrated the majority’s willingness to cherry-pick the facts of a case when analyzing religious freedoms.

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.”