Overview of Title VII Protections
Title VII makes it unlawful to discriminate against employees on the basis of their gender, race, national origin, color or religion. Nowhere does it provide an express definition of discrimination or establish a standard a plaintiff must meet to establish a violation. That void has been left to the courts to fill and adopt a standard for measuring the harm necessary to prove an act of discrimination. Generally, that has taken the form of having to establish an “adverse employment action” or “tangible employment act” with the definitions of those terms often varying depending on the particular violation under Title VII being addressed, whether that be discrimination, retaliation, or determining, employer liability for a supervisor’s workplace harassment.
Defining Discrimination Under Title VII
For purposes of determining whether there has been a discriminatory act in violation of Title VII, the Supreme Court has now clarified that although there will be a requisite showing of harm, that harm need not be significant, stressing that Title VII does not contain any words to indicate that any certain degree of harm would be necessary to establish discrimination.
Muldrow v. City of St. Louis
In Muldrow v. City of St. Louis, the Eighth District held that the plaintiff did not meet her burden to establish her claim for discrimination under Title VII. The City of St. Louis Police Department replaced the plaintiff, a female, with a male that they felt better suited for the dangerous work inherent to a position in the Intelligence Division, which Muldrow had held for nine years. The facts were generally not at issue; however, the parties disagreed whether the changes in the two positions were “significant.”
From Muldrow’s viewpoint, she went from a premier position as a plain clothes officer with an unmarked car and weekday duties to a less prestigious position as a uniformed office performing mundane supervisory duties, working weekend shifts, and without a provided car. She argued that the loss of these work conditions caused her significant harm and resulted in significant employment disadvantages. The City argued that her compensation, benefits, and rank remained the same and that such changes to her employment terms and conditions were “minor.”
Supreme Court Clarification on Title VII Harm Requirements
The Supreme Court found that both parties were measuring the impact of the transfer on the plaintiff incorrectly. Neither party was required to show significant harm. Reviewing the express language of Title VII as it was enacted, the Supreme Court held that Title VII does not establish that some “degree” of harm is required to sustain a violation. Any circumstance that made the employee’s situation “worse” can qualify and extend to circumstances that go beyond purely economic or tangible benefits. Although the plaintiff would need to show she experienced some disadvantages, she is not required to show that they were material, significant, or of some other elevated or particular nature.
Implications of the New Standard for Title VII Plaintiffs
As the Supreme Court illustrated in its decision through its recitation of prior cases where plaintiffs lost due to the imposition of the heightened standard previously imposed under Title VII, this new standard may in fact yield more successful plaintiffs. But, as the Supreme Court emphatically stated, that is not a reason to add words to the statute.
Retaliation Claims Under Title VII
In cases of retaliation under Title VII, it will still be necessary for a plaintiff to prove she suffered an adverse employment action. That standard requires a showing of a significant change in employment status often involving direct economic harm.
Advice to Employers
In response, employers are advised that, when taking personnel actions or making changes to job descriptions, they should examine and document the reason for taking such action. Employers can no longer presume that they are safe from disparate treatment claims merely because there was no significant economic harm resulting from their decision but must analyze the facts including the history of the employment relationship to assure there is no basis for such a claim.
Contact Our Labor & Employment Practice Group
If you have any questions regarding Title VII or any other employment issue, please contact Maribeth Meluch (614.427.5747; MM@kjk.com) or one of the other attorneys in our Labor & Employment Practice Group.