Easier discrimination lawsuits?!?!?!
Court Broadens Meaning of Adverse Employment Action
If you are an EPSHRM members, you may remember a “This just In…” email recently sent about a new National Labor Relations Board ruling that suggested reviewing some handbook policies and discussing with counsel how they could be defended. To add to the NLRB ruling on August 10, the Fifth Circuit Court confirmed, on Aug. 18 that federal anti-discrimination laws can apply to scheduling and other decisions that aren't ultimate employment actions. That separate additional ruling can broaden the meaning of “Adverse Employment Action” that may lead to discrimination lawsuits.
Under Title VII, employers are prohibited from discriminating against any individual because of their race, color, religion, sex or national origin. Before this ruling, workers alleging discrimination had to show they suffered as a result of an ultimate employment decision, such as refusal to hire, termination, suspension or demotion with reduced pay. Under the new ruling, a claim can be based on any decision affecting terms, conditions or privileges of employment. For example, the new ruling could apply to decisions around remote work, lunch breaks, office selection and worksite location.
To bring a discrimination claim involving an unfavorable schedule, employees would have to show it had a impact on a protected group and there was a tangible harm associated with it, such as missing out on overtime pay, a bonus or premium pay periods. The court didn't define the bare minimum of harm required when a plaintiff alleges discrimination, but it confirmed that Title VII does not permit liability for de minimis workplace trifles.
HR should take a more critical look at employment actions falling short of ultimate employment decisions. In addition, employers should take a closer look at their current scheduling policies and anticipated changes in those policies to assess whether the changes are needed for effective business operations.
HR should continue to focus on the legitimate business rationales for making employment decisions so long as those decisions are based on nondiscriminatory reasons. HR professionals should continue to make sure that any decisions and the underlying reasons for those decisions are well documented.
Hamilton v. Dallas County Increases Employer Title VII Liability (natlawreview.com)
Court Broadens Meaning of Adverse Employment Action (shrm.org)
Commentary by: Raylea Stelmach
Edited by:
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