Last July, the Sixth Circuit reversed an employer’s summary judgment, finding that considering race when making shift assignments in order to ensure a diverse management team could constitute actionable race discrimination and was not a de minimis matter. Threat v. City of Cleveland, 6 F.4th 672 (6th Cir. 2021). “When an employee’s race is a basis for a shift change that denies the privileges of that employee’s seniority, the employer has discriminated on the basis of race in the terms and privileges of employment.” It rejected the argument that a shift assignment was never a material adverse employment action. “The point of our cases is to convey that an employer’s alteration of the ‘terms’ or ‘privileges’ of an employee’s work is actionable only when it is ‘adverse’ and ‘material’ to the work.” Moreover, “to give the de minimis rule too broad a reach would contradict congressional intent by denying proper effect to a statute.” The Court also dismissed the argument that Title VII only reaches employment decisions which cause economic harm when the statute reaches not only discrimination in compensation but also discrimination in other terms, conditions and privileges of employment.
According to the Court’s opinion, EMS captains were permitted by the bargaining
agreement to choose their shifts according to their respective seniority, but
the City could change up to four of them for any reason even if it conflicted
with the captain’s first choice. After
the shift bid process, it turned out that the day shifts were staffed with all
black captains. In order to ensure racial
diversity on the shift, the EMS Commissioner moved one to the night shift and
replaced him with a white captain (even though it interfered with that captain’s
child visitation schedule). Discrimination and unfair labor practice charges,
public accusations and litigation ensued.
There is little room for debate that the city discriminated against the plaintiffs—that it treated them differently. . . . .
There also is little room for debate that the city treated the black captains differently “because of” their “race.” [The EMS Commissioner] admitted that she switched out a black captain for a white one to adjust the shift’s racial makeup. That counts as direct evidence of discrimination based on race. . . .
The main debate in this case turns on the meaning of “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Do the city’s shift schedules amount to “terms” of employment? Does getting priority because of seniority in choosing shifts amount to a “privilege” of employment?
At one level, that seems easy. If the words of Title VII are our compass, it is straightforward to say that a shift schedule—whether, for example, the employee works the night shift or the day shift—counts as a term of employment. It’s not even clear that we need dictionaries to confirm what fluent speakers of English know. A shift schedule is a term of employment . . .
. . .
Pulling the meaning of these key terms together, the city decided when Anderson had to work based on his race—and in the process discriminated against him based on race with respect to his terms and privileges of employment. The race-based shift change controlled when and with whom he worked, prohibited him from exercising his seniority rights, and diminished his supervisory responsibilities when the city imposed the night shift on him. All told, the action amounted to discrimination with respect to his terms and privileges of employment under § 703(a)(1).
The City argued that the shift assignments were not
materially adverse employment actions that could be litigated under Title VII. However, the Court found that the City
underestimated the importance of a shift assignment.
We do not see the same gap between the words of Title VII and our liquidation of those words. The point of our cases is to convey that an employer’s alteration of the “terms” or “privileges” of an employee’s work is actionable only when it is “adverse” and “material” to the work. To “discriminate” reasonably sweeps in some form of an adversity and a materiality threshold. It prevents “the undefined word ‘discrimination’” from “command[ing] 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. And it ensures that any claim under Title VII involves an Article III injury—and not, for example, differential treatment that helps the employee or perhaps even was requested by the employee. . . .. Surely those are reasonable assumptions.
At the same time, our approach honors a de minimis exception that forms the backdrop of all laws. The “doctrine de minimis non curat lex (the law does not take account of trifles)” has “roots [that] stretch to ancient soil.” . . . So ancient, the “old law maxim” was already venerable at the founding. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 268 (1796). From the beginning, the de minimis canon has been “part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.” . . . .
When Congress enacted Title VII, the National Legislature provided no indication that it sought to disregard these considerations or to use the word “discriminate” to cover any difference in personnel matters. Yes, “hundreds if not thousands of decisions say that an ‘adverse employment action’ is essential to the plaintiff’s prima facie case” even though “that term does not appear in any employment-discrimination statute.”. . . . And, yes, the same could be said about a “materiality” requirement. 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. Else, like “the children’s game of telephone,” we risk “converting the ultimate message into something quite different from the original message—indeed sometimes into the opposite message.” . . . “[T]o give the de minimis rule too broad a reach would contradict congressional intent by denying proper effect to a statute.” . . . That concern, however, must be balanced against the reality that “we cannot just toss the de minimis rule aside.” Id.
In this instance, employer-required shift changes from a preferred day to another day or from day shifts to night shifts exceed any de minimis exception, any fair construction of the anchoring words of Title VII, and for that matter any Article III injury requirement. Whether we refer to claims of discrimination based on race in “terms” or “privileges” of employment or to claims of discrimination based on race in “materially adverse” terms of employment, the conclusion is the same: They state a cognizable claim under Title VII when they refer to shift changes of this sort and under these circumstances.
While acknowledging that some prior Sixth Circuit cases have
dismissed challenges to shift assignments as not implicating a material adverse
employment action, the Court concluded:
Not all shift changes are the same. And some shift changes and reassignments may constitute, say, race-based discrimination in “terms,” “privileges,” and other aspects of employment.
The Court also dismissed the argument that Title VII only
reaches employment decisions that cause economic harm when the statute reaches not
only discrimination in compensation but also discrimination in other terms,
conditions and privileges of employment.
Cabining the provision to pocketbook harms would render meaningless many of the words in the statutory phrase “compensation, terms, conditions, or privileges of employment.” As the words after “compensation” suggest, Title VII indeed extends beyond “economic” discrimination.
The Court also remanded the claims of the other captains who
were not reassigned so that the trial court could consider whether the reassignments
controlled with whom they could work.
The Court affirmed dismissal of the retaliation claim based on the
unfair labor practice charge filed against their union.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
