When presented with an employment discrimination claim, one of the early questions any agency or court must answer is whether the claimant has suffered an “adverse employment action.” Simply stated, even if a discriminatory motive can be shown, is the harm suffered by the claimant significant enough to support a viable discrimination claim? This question arises regardless of whether the complaint is made under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), or other state or federal employment law. Not every slight, indignity, or inconvenience experienced in the workplace is sufficient to meet this standard, but where does one draw the line?
For decades, the Fifth Circuit Court of Appeals has held that a plaintiff in a discrimination case cannot advance a claim unless the employment action in question was “materially” adverse and resulted in “tangible job detriment.” Actions resulting in a loss of pay or benefits such as a discharge, demotion, promotion denial, reduction of compensable work hours, or pay reduction are deemed to satisfy this standard. Conversely, poor performance evaluations, warnings or reprimands, placement on paid leave, or revocation of incidental privileges do not. As plaintiffs continue to present ever-changing fact scenarios, however, various panels of the court have arguably begun to erode what was once thought to be a “bright line” test for adverse employment action in this circuit.
Late last month, in Thompson v. City of Waco, Texas, No. 13-50718, (5th Cir. Feb. 26, 2015), the court issued a three-sentence ruling that has brought the issue to the fore. Eleven of the court’s 15 judges voted not to rehear a decision issued by a three-judge panel of the court, drawing a pointed dissent from Fifth Circuit Judge Grady Jolly, whose opinion was joined by the three other judges in favor of rehearing. In his opinion, Judge Jolly urged the court to “produce a clear standard” for assessing whether an employment action is indeed adverse, “so that all litigants get the same deal from this Court.”
The plaintiff in the case was Allen Thompson, a black detective with the Waco, Texas police department. Thompson and two white detectives were suspended for falsifying timesheets, but were later reinstated. Only Thompson, however, was placed under work restrictions that prohibited him from logging evidence, gathering evidence without supervision, working undercover, giving affidavits in criminal cases, or acting as lead investigator. Thompson sued for race discrimination, but the district court dismissed his claim, finding that a mere loss of job responsibilities was not actionable unless accompanied by a change of job title or salary. On appeal, however, a Fifth Circuit panel held 2-to-1 that the changes to Thompson’s job were the “equivalent of a demotion” and “so significant and material that [they rose] to the level of an adverse employment action.” When the city moved for a rehearing of the case by the full court en banc, the court refused, prompting Judge Jolly’s dissent.
The court’s opinions in this area of law, he observed, have suffered from “inconsistencies” in recent years. Thus, in 2004, the court had ruled that a “transfer  . . . is insufficient to establish an adverse employment action.” The court declared a few years later, he added, that “[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.”
Less than one week after that pronouncement, he continued, the court decided that the denial of a transfer may qualify as an adverse employment action, even if the new position would not have yielded a pay raise or other tangible benefits. In the current case, he said, the 2014 panel had held that a mere change in or loss of job responsibilities, which resembles a transfer, now qualifies as an adverse employment action. “In short,” he concluded, “our cases give district judges and litigants no guidance as they attempt to thread their way through our confusion. They deserve better. We should give them better.”
“Better” guidance from the court in this area would indeed be helpful, but it does not appear the full court will be taking up the question anytime soon.
Robert E. Bettac is a shareholder in the San Antonio office of Ogletree Deakins.