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Workplace Bias Cases Test What Makes a Valid Discrimination Claim

June 13, 2022, 9:30 AM

Federal appeals courts are grappling with the question of what kinds of workplace disparities rise to the level of illegal discrimination, creating the potential for judges to broaden employee protections under federal anti-bias laws.

Last week, a federal appeals court heard oral argument in a female construction worker’s bid to revive her lawsuit accusing a company of unlawfully denying her the same work opportunities as men. A district judge threw out the case because that denial wasn’t an “ultimate employment decision.”

Another court is considering cases on the legal requirements for “adverse employment actions” when workers sue companies after not getting requested disability or religious accommodations.

What types of biased employer actions are necessary to bring a discrimination claim has been a frequently litigated issue. The result is a complicated, sometimes-inconsistent set of standards that vary by law and circuit.

But federal courts are turning more towards interpreting anti-bias laws according to their actual text—exemplified in the US Supreme Court’s landmark 2020 ruling that expanded job protections to LGBT workers. That shift could cause judges to rethink the judicial doctrine for adverse employment actions, legal scholars say.

“The doctrine is simply inconsistent with the statutory text,” said Katie Eyer, a discrimination law professor at Rutgers University who’s written on judicial interpretive theories. “It is also a very common way that plaintiffs with strong, even uncontroverted, evidence of discrimination see their cases get dismissed.”

A June decision by the full US Court of Appeals for the District of Columbia Circuit may be a harbinger for what’s to come.

That court overturned its 22-year-old precedent demanding that workers who challenge discriminatory transfers or transfer denials also show they suffered an “objectively tangible harm.” The ruling—which conflicts with other circuits’ decisions on the issue—hinged on the court’s parsing of the text in Title VII of the 1964 Civil Rights Act.

“Once it has been established that an employer has discriminated against an employee with respect to that employee’s ‘terms, conditions, or privileges of employment’ because of a protected characteristic, the analysis is complete,” the D.C. Circuit said. “The plain text of Title VII requires no more.”

Judge-Created Doctrine

Courts initially used “adverse action”—which doesn’t appear in the text of Title VII or other federal anti-bias laws—as a summary term to describe the negative outcomes resulting from workplace discrimination, said Sandra Sperino, a law professor at the University of Missouri who’s written extensively on discrimination law.

Different courts over time have imbued that term with their own specific meanings, which have acted as screening mechanisms to filter out certain claims, Sperino said. Some judges seem concerned that not every potentially discriminatory thing that happens at work should be a federal case, she said.

“That’s resulted in all of these unsatisfying cases that seem at odds with how workers experience discrimination,” she said. “Cases where courts say that even if something negative happened based on a worker’s protected trait, it’s not discrimination unless it reaches a culmination point or a certain level of seriousness.”

Some courts have ruled that allegedly biased performance evaluations, excessively scrutinizing job performance, threatening discipline or termination, and assigning additional or more difficult work don’t meet the adverse employment action threshold, according to Sperino’s research.

But the body of law that’s developed is confusing and inconsistent, she said, as other courts have held that the same or similar conduct does qualify as unlawful bias.

“It’s quite surprising that, at this point, what constitutes discrimination is still so up in the air and varies by circuit and context,” said Michael Selmi, a law professor at Arizona State University who’s written on employment discrimination. “It’s certainly ripe for the Supreme Court to tackle one of these cases, or maybe more.”

Ultimate Decisions

The Fifth Circuit uses the most restrictive version of the adverse employment doctrine, requiring that a worker must be fired, not hired, or experience a similar “ultimate” employment decision to support a job discrimination claim.

That threshold is out of step with Supreme Court opinions on the scope of Title VII, such as the declaration in Harris v. Forklift Systems that the law goes beyond economic or tangible discrimination to bar a broad spectrum of disparate treatment, said Sachin Pandya, a discrimination law professor at the University of Connecticut.

The US Justice Department in 2020 urged the high court to strike down the Fifth Circuit’s standard. The justices were considering whether to review a decision that threw out a lawsuit alleging that a company gave Black offshore oil workers outdoor assignments without water breaks, while their White counterparts worked inside with air conditioning.

The Supreme Court never weighed in because the parties settled.

‘Movement to Change’

The next shot at modifying the Fifth Circuit’s standard could come as part of a case recently argued before the court.

A Louisiana federal judge invoked the appeals court’s ultimate employment decision standard to toss construction worker Magan Wallace’s gender discrimination claim against Performance Contractors Inc. Wallace alleged that she was told in direct and profane terms that she couldn’t work “at elevation” on a project—on scaffolding and scissor lifts—because she was a woman, but the judge said that wasn’t an ultimate decision giving rise to a discrimination claim.

Performance Contractors’ attorney, Murphy Foster of Breazeale Sachse & Wilson LLP, told a three-judge panel of the Fifth Circuit during oral arguments June 9 that Wallace was barred from working at elevation because of her lack of experience, not her sex.

Judge Jennifer Walker Elrod, a George W. Bush appointee, said there’s a “whole movement to change our precedent” on final employment decisions.

But she then asked Wallace’s attorney, Madeline Meth of the Georgetown Law Appellate Courts Immersion Clinic, if Wallace could win under existing precedent.

The refusal to allow her to work at elevation was tantamount to a demotion, which satisfies the Fifth Circuit’s standard for a discrimination claim, Meth responded. Nevertheless, she preserved her argument against the circuit’s standard for possible review by the full court.

“Any discriminatory prohibition on job duties violates Title VII,” Meth said, “because the tasks an employee is assigned are job requirements an employer may not dole out in a discriminatory fashion.”

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Laura D. Francis at; Genevieve Douglas at