Changing Standards; What's the "Harm" in It?
This blog briefly looks at a recent Supreme Court case and some Fifth Circuit case law redefining what a "discrimination" case might look like – that is, what "harm" is required to be actionable under Title VII—what does "harm" look like? That word, "harm," seems to have a broader meaning today; it does not mean "significant," and it does not have to involve an "ultimate employment decision" to be actionable, though it will not pass muster if considered just "de minimus." In short, what harm is depends on each court's view of discrimination.
Does the Refocus on "Harm" Change the Employer's Decision-Making Process?
- U.S. Supreme Court: Muldrow v. St. Louis – Harm Need Not Be "Significant."
On April 17, 2024, the United States Supreme Court issued Muldrow v. St. Louis, 144 S.Ct. 967 (2024), which, in sum, stated that "merely" a transfer of employment may sufficiently meet the requirements of Title VII, if the employee suffered "harm" in the terms or conditions of employment. Muldrow, a sex discrimination case, involved a police officer transferred from a high-profile division to another less so, though keeping her rank and pay (there were other mentioned losses related to scheduling, but the justices focused on the somewhat amorphous loss of upper management interaction in a premier division). The City of St. Louis argued that the change was not one of "significance," as the officer retained her pay, rank, and benefits, and still had promotion opportunities; both the district court and the Eighth Circuit agreed, which decisions resulted in dismissal and then an affirmance of that dismissal, respectively.
The Supreme Court's response, 9-0, was something of a "smack-down" reversal of the lower courts' view of discrimination. In a "this-was-the-law-all-along" approach, Justice Kagan (supported by all the other justices) went to the precise language of the statute and found no requirement for "significance" in the determination of whether an employment action caused "harm." All Title VII requires, Justice Kagan explained, is that the action cause "some 'disadvantageous' change." 144 S.Ct at 974. The High Court held that a discrimination claim may exist if the employee demonstrates the employer's action would "treat worse" an employee on the basis of a protected class, here sex.Id. ("The transfer must have left her worse off, but need not have left her significantly so." Id. at 977). And with that, the Supreme Court found that Muldrow had presented sufficient evidence of possibly "worse" treatment in the division transfer, and the Court overturned the dismissal, returning the case to the trial court to consider whether the summary judgment decision, given the evidence presented, squared with the mandate in the case.
- The Fifth Circuit: Hamilton v. Dallas County: Disparate Treatment Need Not Result from an "Ultimate Employment Decision."
In a connected way though as something of an unknowing precursor to Muldrow, the Fifth Circuit, in 2023, en banc (meaning all justices considered the issue),summarily threw out what appeared to be almost three decades of Fifth Circuit law, that, to be actionable under Title VII, the discrimination action had to involve an "ultimate employment decision."
In Hamilton v. Dallas County, 79 F.4th 494 (5th Cir. 2023) (en banc), the Fifth Circuit reversed a motion to dismiss decision and concluded that the discriminatory action need not be an "ultimate employment action," that is, it need not involve hiring, firing, compensating, providing leave, promotion, or demotion. Of concern was "merely" a scheduling complaint—that women officers were never scheduled the two days of a weekend as consecutive days off (though male officers were allowed that time off). Id. at 497. The Fifth Circuit said that the scheduling complaint was sufficient to meet Title VII requirements—that an adverse employment action was, indeed, sufficiently alleged, as long as a "term, condition, or privilege of employment was involved," even if a financial disadvantage was not. Id. at 501-02. As in Muldrow, the Fifth Circuit went back to the specific language of the statute, holding "we have little difficulty concluding that they have plausibly alleged discrimination 'with respect to [their] ... terms, conditions, or privileges of employment.'" Id. at 503 (footnote omitted). A strict constructionist, Justice Ho (appointed by President Trump), agreed, though others (such as Justice Edith Jones, a staunch conservative), agreed only in the judgment. Id. at 506-12.
- Fifth Circuit's Tweak of
Hamiliton:
- "De Minimus" Harm Is Insufficient.
- Training Costs?
Only a month after Hamilton, the Fifth Circuit clarified the ruling, issuing Harrison v. Brookhaven Sch. Dist., 82 F.4th 427 5th Cir. 2023) (per curiam). While the decision reversed the lower court's granting of a motion to dismiss (based on previous law concerning "ultimate employment" decisions), the appellate court explained also that "de minimus" harm is insufficient as a matter of law to be actionable. As Harrison noted:
Title VII does not permit liability for de minimis workplace trifles. Thus, Harrison must allege not only an adverse action, but something more than a de minimis harm borne of that action. This is often referred to as the "materiality" half of the analysis .... To "discriminate" reasonably sweeps in some form of an adversity and a materiality threshold. It prevents the undefined word "discrimination" from commanding judges to supervise the minutiae of personnel management. It ensures that a discrimination claim involves a meaningful difference in the terms of employment and one that injures the affected employee .... But we take these innovations to be shorthand for the operative words in the statute and otherwise to incorporate a de minimis exception to Title VII. But de minimis means de minimis, and shorthand characterizations of laws should not stray.
Id. at 431–32.
The Fifth Circuit concluded that Harrison's allegations (based on training costs) were not "trifling" but were sufficient to meet the requirements of Title VII. Id. at 432 (finding actionable discrimination claim based on plaintiff paying $2,000 for training on her own, after employer promised to pay for it; plaintiff asserted that white males were treated differently). So, Harrison teaches that requiring plaintiff to pay $2,000 for training was not a trifling matter, but something on which a discrimination claim might be based.
Court Interpretations of Muldrow, Hamilton, and Harrison.
- Defining De Minimus, in Dixon v.
Garland:
- No Qualifying Adverse Actions.
Interpreting the meaning of "de minimus," Dixon v. Garland, 4:23-cv-00019-P, 2024 WL 150509 (N.D. Tex. Jan. 12, 2024), the Northern District of Texas granted summary judgment for the employer (the Federal Bureau of Prisons) and held that several events of alleged adverse action were not above the "de minimus" level. Id. at *4-6 (rejecting: light duty assignment, slight delay to normal duty, supervisor's "playing favorites," supervisor's less than outstanding reviews, supervisor's minimal delay in hours certification, ostracization in the workplace, coworker complaint, and memo posted after her resignation, id. at *4-6; also finding no showing of comparator, id. at *6). See also Brown v. Wormuth, No. CV-21-00477-TUC-RM (MSA), 2024 WL 3553112, at *6 (D. Ariz. July 6, 2024) (Magistrate Aguilera) (recommending entry of summary judgment for employer; one-time verbal admonition on date of termination not "harm").
Dixon opined that "materiality" is a shorthand characterization of the well-established de minimis standard, "has roots that stretch to ancient soil." Id. at *4. And, thus, Dixon said, courts must give the de minimis standard its familiar meaning—"de minimis non curat lex (the law does not take account of trifles)." Id. Accordingly, the court held that a plaintiff alleges an adverse employment action only if he or she alleges more than de minimis discrimination in the terms, conditions, or privileges of employment. Under that standard, the court held that none of Plaintiff's claims were actionable. [Note that the Dixon decision is currently on appeal to the Fifth Circuit.]
- Job Assignments and Job Title Changes May Not Be Actionable?
The court in Melvin v. Hobby Lobby Stores, Inc., Case No. SA-22-CV-01323-JKP, 2024 WL 3093494 (W.D. Tex. June 20, 2024), the district court rejected the notion that that Muldrow and Hamilton had changed consideration of plaintiff's complaint about his assignment to various jobs in the retail store. Id. at *9 (granting summary judgment in part as to discrimination claim, but not as to retaliation claim). The reason was that the employer demonstrated that, from time to time, these were expected jobs ("essential functions") of all employees ("acknowledge upon hire"); consequently, the court rejected the argument that an adverse employment action had occurred. Id. at *5. The court noted also that differences in job titles were "de minimus" issues and not actionable. Id. at *6. Key here was the proof showing that the plaintiff was not treated differently—that the same rules applied to all employees, who apparently were told as much at hire. Id. at *5.
- Emotional Harm May Be Sufficient?
Concluding that "emotional harm" alone may be actionable, even though no financial impact was noted, the district court denied a motion to dismiss (though agreeing that "discrete acts of discrimination" before the 300-day time were barred). Johnson-Lee v. Texas A&M Univ. – Corpus Christi, Civil Action No. 2:23-CV-00229, 2024 WL 3196764, at *2 (S.D. Tex. April 11, 2024) (assignment of undesirable tasks such as "domestic chores," id. at *4)) The court found sufficient under Title VII "emotional harm including humiliation, anxiety, and panic attacks," Id. (quotation omitted).
- What about:
- Supervisor Assignment?
- A Long Investigation of Complaint?
- Disagreement by Some Co-Workers?
- Temporary Change in Responsibility?
Rejecting all the above complaints, Judge Hittner, in Gooden v. University of Houston Sys., Civil Action No. H-23-1987, 2024 WL 1893609 (S.D. Tex. April 30, 2024), granted summary judgment for the employer. Id. at *6. The district court found the "harm" alleged did not negatively affect the employee's actual terms and conditions of employment—that the plaintiff was unable to show a connection to those terms/conditions. Id. at * 3-4. Thus, the court found no evidence of "adverse action." Id. at *3 ("In the instant case, there is no indication that the alleged discrimination by Gengler affected Gooden's employment in terms of hiring, firing, compensation, or the terms, conditions, or privileges of his employment." Id.).
- The Comparator Rule Is Still Important.
As noted in several decisions above, the Fifth Circuit in Harper v. Lockheed Martin Corp., No. 22-10787, 2024 WL 361313, at *3-4 (5th Cir. Jan. 31, 2024), underscored the lack of comparator evidence, despite the change in focus in the Hamilton case (see above); a plaintiff must still demonstrate that he/she was less favorably treated, when compared to someone outside of the protected class. Id. at *3. As Harper did not present evidence of favorable treatment given to others, the appellate court affirmed the trial court's summary judgment, finding that the plaintiff had "failed to prove that she was treated less favorably than others similarly situated outside of her protected class or provide evidence that her employer took the adverse actions because of her protected-class status." Id. (employee's job termination followed due to an EEO investigation related to her "sexual comments" in the workplace). The Fifth Circuit noted that Harper's complaints were narrowed by her deposition responses and the remaining issues zeroed in on only the employer's investigation and plaintiff's discipline for not coming to work, both of which were deemed insufficient as a matter of law to support her claim, particularly given that the plaintiff could not show how she was treated differently from others. Id. at *4. See also Daywalker v. University of Texas, Med. Branch, at Galveston, No. 22-40813, 2024 WL 94297 (5th Cir. Jan. 9, 2024) (per curiam) (residency student having to repeat her third year did not present evidence of "nearly identical" comparator; no inference of race discrimination).
- Summary Judgment versus Pleading Standards.
At the beginning of a case a plaintiff's pleading may be scrutinized more liberally, than when a summary judgment motion is filed after discovery is closed. In White v. Royal Amer. Management, Civil Action No. 4:23-CV-792-P, 2024 WL 2805926 (N.D. Tex. May 15, 2024), the district court interpreted the complaint to allege constructive discharge, and the court also noted the alleged denial of training and overtime. Those allegations avoided summary dismissal based on the court's understanding of the pleading. See id. at *3 and *3, n. 5.
- The Muldrow/Hamiton Rules Do Not Apply to Harassment Claims.
In Preciado v. Recon Security Corp., Magistrate Judge Casteneda rejected the argument that Muldrow/Hamilton rules change the analysis of a harassment claim. EP-23-CV-00052-RFC, 2024 WL 3512081 (W.D. Tex. July 23, 2024). Rather, the court held that harassment analysis still requires a review of how "severe" or "pervasive" the action was. Thus, as to Preciado, the conclusion meant that Preciado's claim was barred (on motion for reconsideration). Id. at *3.
This requires an analysis of whether the alleged incidents of sexual harassment were "adequately severe or pervasive" to alter the terms, conditions, or privileges of employment. Cerda, 95 F.4th at 1004; see also Jones v. Flagship Int'l, 793 F.2d 714, 719–20 (5th Cir. 1986) ("[T]he sexual harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment ...."). The Court analyzed this question using Fifth Circuit cases that addressed the standard for when incidents become pervasive enough to constitute sexual harassment. See Summ. J. Order 24–27. Therefore, the Court declines to reconsider its grant of summary judgment to Defendant on this issue.
Id. See also Zuniga v. Dallas, Texas, Civil Action No. 3:23-CV-2308, 2024 WL 273 4956, at *3 & n. 3 (N.D. Tex. May 28, 2024) (Muldrow does not change long-established Supreme Court precedent about harassment cases); see also Gooden v. University of Houston Sys., 2024 WL 1893609, at *5) (rejecting harassment allegation as it did not demonstrate "substantial" or "pervasive" actions; that there was no "termination or reprimand and ultimately" the plaintiff received a pay raise. Id.).
Summary
We know that "harm" need not be "significant" to be actionable. We know that the "harm" need not involve an "ultimate employment action." We know that the "harm" must be more than "de minimus." We know that these rules apply to discrimination claims, but are not the standards used for harassment or other Title VII claims.
Nevertheless, what is less than "significant" but more than de minimus is not known entirely; we await case law as it develops. In a sense, courts are saying, "I will know it when I see it." Cases also signal that courts continue to recoil from being seen as HR departments for companies and that they want to avoid adjudicating "slights" and small "petty" employment complaints. Naturally, perspective is critical; one person's burden is another's small slight. The new rules do open up the potential for broader liability, when compared to previous decisions. In the end, as always is the case, to avoid claims of discrimination and litigation, employers must set a course to treat all employees, in similar circumstances, the same.
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