DOJ Says Black EMS Captains Can Prove Bias Without Material Harm

July 13, 2021, 9:46 AM

Cleveland violated federal law when its EMS commissioner considered race when adjusting supervisors’ shift assignments even though the five Black supervisors challenging the moves didn’t lose any pay, the U.S. government will tell the Sixth Circuit during oral arguments Tuesday.

But the government’s position essentially ignores “decades of controlling case law,” according to the city. The commissioner is the mother of biracial children, and she considered race when reviewing shift assignments derived through seniority to ensure diversity, the city said.

The case raises the question of whether Title VII of the 1964 Civil Rights Act really requires proof of an adverse employment action, which most federal courts have long treated as an essential element of a race or other job bias claim.

Race discrimination of the type the city’s Emergency Medical Service commissioner, Nicole Carlton, admitted to is actionable under Title VII because it necessarily affects a term, condition, or privilege of employment, the U.S. said in an amicus brief filed in support of the five supervisors or “captains.”

Federal courts have mistakenly injected a “materiality” requirement into Title VII and have wrongly required employees to prove discriminatory job assignments or transfers resulted in a loss of pay, prestige, or responsibility to prevail, the government said.

But Title VII reaches beyond job actions that have economic consequences, Michael Threat and the other four captains said in their opening brief on appeal.

The nation’s primary workplace discrimination law doesn’t ever use the phrase “adverse employment action,” they said. Title VII instead encompasses “the entire spectrum of the employer-employee relationship.”

That includes Carlton’s biased efforts to ensure that no EMS shift would be staffed entirely with Black captains, they said. She never adjusted assignments to break up shifts with all White captains, they said.

Captains’ shift assignments are decided by a union bidding process under which seniority controls, Threat and the others said. The union contract permitted Carlton, as commissioner, to make four changes to the shifts decided through bidding. But it didn’t authorize her to make race-based decisions to relegate—to less desirable evening shifts—Black captains whose seniority entitled them to day shifts, they said.

Day shifts involve less idle time and allow more captains to work together, they said. EMS captains, like most people, prefer days because they’re conducive to regular sleeping and eating habits and so healthier. They’re also less likely to interfere with family obligations and social and civic engagements, Threat and the others said.

There are also fewer chances for desired overtime pay at night, they said.

When EMS captains work, and who they work with, are terms or conditions of employment. So are the earned benefits of seniority, they said.

Law Settled

Threat and the others waived any argument over whether an adverse action is an element of a Title VII claim by failing to raise that contention with the trial court, the city will tell the U.S. Court of Appeals for the Sixth Circuit.

Further, the Sixth Circuit and federal courts generally “have long required” proof of an adverse job action even though such a requirement doesn’t directly appear in Title VII, it said.

The U.S. Supreme Court has held that Title VII isn’t meant to protect workers from “trivial harms,” the city said.

The Sixth Circuit has repeatedly held that reassignments that don’t affect salary, benefits, job title, or work hours typically aren’t “adverse,” it said.

And the appeals court and other circuits have likewise held that shift changes aren’t adverse absent some impact on a worker’s pay, prestige, or responsibility, the city said.

Carlton also never changed the shift assignments of Threat and three of the other Black captains, it said.

She did alter the shift assignment of one Black captain, but that was only for about five months, which the lower court properly found wasn’t truly adverse, the city said.

Jared S. Klebanow and Avery S. Friedman, both of Cleveland, and Georgetown University Law Center in Washington represent the captains. The city’s director of law represents Cleveland and Carlton. The Justice Department and the Equal Employment Opportunity Commission represent the U.S.

The case is Threat v. City of Cleveland, 6th Cir., No. 20-4165, oral argument 7/13/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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