"adverse Employment Action" - How Much Harm Must Be Shown to Sustain a Claim of Discrimination Under Title Vii? - Autumn George

• Jurisdiction: United States,Federal
• Publication year: 2009
• Citation: Vol. 60 No. 3

Comment

"Adverse Employment Action"—How Much Harm Must be Shown to Sustain a Claim of Discrimination Under Title VII?

I. Introduction^*

"Adverse employment action" is judicial shorthand for determining whether a plaintiff showed that an employer's action sufficiently affected the employee's "compensation, terms, conditions, or privileges of employment."¹ This is a crucial element to sustain a Sec. 703 claim under Title VII of the Civil Rights Act of 1964.² However, what does "adverse employment action" really mean and how much harm must be alleged to satisfy the Sec. 703 harm element? Must an employee show some direct economic harm? Or a less tangible, indirect economic harm? Or what about a non-economic harm? Courts have struggled with these questions. Since the seminal decision by the United States Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White,³ which defined the harm standard for Title Vll's companion Sec. 704⁴ claim under unlawful retaliation,⁵ the circuits have become even more divided on how much harm must be alleged to sustain an action of discrimination under Title VII.

II. A Cause of Action Under Title VII Sec. 703(a)

Under Sec. 703(a)(1) of Title VII,⁶ it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."⁷ A plaintiff may establish a claim of discrimination through either direct or circumstantial evidence.⁸ To establish a prima facie case of discrimination through circumstantial evidence, four elements, set forth by McDonnell Douglas Corp. v. Green⁹ and its progeny, must exist.¹⁰ A plaintiff must show that (1) he is a member of a protected class, (2) he applied and possessed at least the minimum objective qualifications for the position at issue, (3) he was subject to adverse employment action by the employer, and (4) he was replaced by someone outside the protected class or treated less favorably than other similarly situated employees outside the protected group.¹¹

"Adverse employment action" is a judicially coined term for the actual language of Sec. 703(a)(1), which states that the action must affect the employee's "compensation, terms, conditions, or privileges of employ-ment."¹² Examples of employer actions that are clearly adverse include denying a position to an employee who meets the minimum qualification, decreasing employee compensation or denying an employee a raise, or transferring an employee to a position of less responsibility or pay.¹³

All of these examples show some direct economic harm suffered by the employee.

III. A History of Seminal Supreme Court Cases Leading to the Controversy Surrounding Adverse Employment Action

In Hishon v. King & Spalding,¹⁴ Elizabeth Hishon, a female associate, filed suit against King & Spalding, a law firm, alleging sex-based discrimination under Title VII. Prior to hiring Hishon, King & Spalding allegedly dangled the prospect of becoming partner as a recruiting device for young lawyers, such as Hishon, to join the firm. The firm promised that associates who received satisfactory evaluations would advance to partner status after five to six years of employment. A general standard existed that if an associate was not asked to become partner within that time frame, then the firm notified the associate to begin looking for another job. In other words, if the firm decided not to promote the associate to partner, the firm would terminate the associate's employment. In Hishon's sixth year of employment at the firm, she was due to be considered for partnership but was rejected. She worked her seventh year, and the partners again declined to promote her. At this point, Hishon's relationship with King & Spalding terminated, and she sued for sex-based discrimination under Sec. 703 of Title VII.¹⁵ Hishon alleged that by denying her the opportunity to become partner due to her sex, the firm discriminated against her with respect to a term, condition, or privilege of employment.¹⁶

The United States District Court of the Northern District of Georgia dismissed Hishon's case for failing to state a cognizable claim under Title VII, and the United States Court of Appeals for the Eleventh Circuit affirmed.¹⁷ The United States Supreme Court granted certiorari to decide whether Hishon's complaint was properly dismissed.¹⁸ The Court reversed and remanded the case, entitling Hishon to her day in court.¹⁹

In dictum, the Supreme Court broadly interpreted the Sec. 703 "terms, conditions, or privileges ofemployment" language, especially with regard to privileges of employment.²⁰ The Court noted that a noncontractual benefit of employment may qualify as a "privilege" under Sec. 703 if the benefit is given in a discriminatory manner.²¹ To fit within the scope of a privilege, the benefit must be "part and parcel of the employment."²² In other words, "[t]hose benefits that comprise the incidents of employment, or that form an aspect of the relationship between the employer and employees, may not be afforded in a manner contrary to Title VII."²³ The Court observed that Hishon's situation is the type of privilege Title VII attempts to protect.²⁴ Given the specific facts of the case, "the opportunity to become a partner was part and parcel of an associate's status as an employee" of the firm.²⁵ Although ultimate employment actions, such as hiring and firing, always constitute Sec. 703 adverse employment actions, this case assumes that a "failure to promote may be actionable independent of a discharge."²⁶ The 1984 case created a fuzzy line for how much harm a plaintiff must allege under Sec. 703 to sustain a cause of action for discrimination, which later resulted in future conflicts between lower courts.²⁷ By suggesting that such a claim may be actionable absent an ultimate employment action, such as discharge, the Court broadened the "terms, conditions, or privileges of employment" language and opened the door for future claims asserting less direct economic harm.²⁸

The Supreme Court subsequently noted that the harm needed for an actionable discrimination claim need not be accompanied by "tangible" or "economic" harm.²⁹ In Meritor Savings Bank v. Vinson,³⁰ a female bank teller, Vinson, claimed she was a victim of sex discrimination. Her discrimination claim was based on allegations of sexual harassment. The United States District Court for the District ofColumbia found that Vinson had not sufficiently proved a claim of discrimination based on sexual harassment; however, the United States Court of Appeals for the District of Columbia Circuit disagreed, holding that a claim under Title VII may be predicated on sexual harassment.³¹

The Supreme Court held that the harm needed to demonstrate discrimination under Title VII is not limited to economic or tangible harm.³² Instead, the Court held that a plaintiff may establish a claim of sex discrimination based on a hostile or abusive work environment that does not necessarily result in a corresponding economic loss.³³ Examples of workplace conduct that could be actionable under Title VII include "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature."³⁴ This kind of workplace conduct is generally termed a "hostile work environment."³⁵ To limit claims to those truly in need of Title VII protection, the Court set a standard for the degree of sexual harassment that establishes the necessary harm for a discrimination claim: The sexual harassment "must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment."³⁶ Accordingly, the Court established that noneconomic harm that meets the "severe or pervasive" standard is sufficient to demonstrate an actionable Sec. 703 claim, thereby broadening the "terms, conditions, or privileges of employment" language even further.³⁷

These propositions were reaffirmed in subsequent cases before the Supreme Court.³⁸ In Harris v. Forklift Systems, Inc.,³⁹ the Court added that the hostile work environment standard "takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury."⁴⁰ The Court held that such a claim cannot survive if the victim did not subjectively perceive the conduct as hostile because the conduct would then not actually alter the conditions of the victim's employment.⁴¹ But the opinion stated that the lower courts could and should consider a variety of noneconomic factors when deciding whether an "environment is 'hostile' or 'abusive,'" including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."⁴²

In 2006 the Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White⁴³ set the standard for defining the harm, or adverse employment action, element required to prove retaliation under Sec. 704.⁴⁴ To establish a retaliation claim under Sec. 704, "a plaintiff must show that (1) he engaged in statutorily protected [activity]; (2) he suffered an adverse employment action;" and (3) a causal connection existed between the protected activity and the adverse action.⁴⁵ Section 704 retaliation claims and Sec. 703 discrimination claims are commonly asserted together because the plaintiff's employment may be detrimentally affected in reprisal for having alleged unlawful employment discrimination. Many courts, before this decision, used the same standard to determine whether a plaintiff sufficiently showed an adverse employment action for Sec. 703 discrimination claims and Sec. 704 retaliation claims.⁴⁶ Although the Court's decision in Burlington...