EEOC Updates COVID Technical Guidance to Address Caregiver Issues

 

On Pi day (i.e., March 14 or 3.14), the EEOC released a new publication, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, and updated its Technical Assistance Guidance for COVID issues which impact federal equal opportunity laws.   In particular, this EEOC update focuses on sexual stereotypes associated with caregiving responsibilities.   This update to the COVID Guidance is as follows:

I. Caregivers/Family Responsibilities

For additional information about pandemic-related caregiver discrimination under the laws enforced by the EEOC, see the EEOC’s technical assistance document, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.

I.1. If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (3/14/22)

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caregiving responsibilities for children.

I.2. How might unlawful caregiver discrimination related to the COVID-19 pandemic arise under the laws enforced by the EEOC? (3/14/22)

Caregiver discrimination violates the laws enforced by the EEOC if it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 or older), or another characteristic covered by federal employment discrimination laws. Caregiver discrimination also is unlawful if it is based on the caregiver’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual receiving care.

Caregiver discrimination related to the pandemic may arise in a variety of ways. For instance, under Title VII, employers may not discriminate against employees with pandemic-related caregiving responsibilities based on their sex, including gender stereotypes associated with caregiving responsibilities or roles. For example, employers may not decline to assign female employees with caregiving responsibilities demanding or high-profile projects that increase employees’ advancement potential but require significant overtime or travel. Likewise, employers may not reassign such projects to other employees based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19. Employers also may not deny male employees permission to telework or to adjust their schedules to enable them to perform pandemic-related caregiving obligations, such as caring for young children or parents, while granting such requests when made by similarly situated female employees.

Title VII also prohibits employers from discriminating against employees with pandemic-related caregiving duties based on their race or national origin. For example, employers may not require more burdensome processes for employees of a certain race or national origin who are requesting schedule changes or leave related to COVID-19 caregiving. Employers also may not deny such requests more frequently, or penalize employees for requesting or receiving schedule changes or leave for caregiving purposes, based on employees’ race or national origin.  Discrimination based on citizenship or immigration status against workers with caregiving responsibilities also can be unlawful under a law enforced by the Department of Justice.

Under the ADA, employers may not discriminate against workers based on stereotypes or assumptions about workers’ caregiving responsibilities for an individual with a disability, such as a child, spouse, or parent with a disability. For example, if an applicant is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19, an employer may not refuse to hire the applicant out of fear that the care recipient will increase the employer’s healthcare costs. If the applicant is hired, the employer may not refuse to allow the care recipient to be added as a dependent on the employer’s health insurance because of that individual’s disability. An employer also may not refuse to promote employees with caregiving responsibilities for an individual with a disability based on the assumption that they will take a significant amount of leave for caregiving purposes.

I.3. Are these legal protections available only to workers caring for children, or are they also available to workers with other caregiving obligations? (3/14/22)

This response includes hyperlinks to non-governmental sources.  The EEOC includes these resources solely for informational purposes.  The EEOC does not endorse these resources or the entities responsible for them, and it does not vouch for the accuracy of the information provided by referencing the non-governmental sources in this response.

Employers may not discriminate against applicants or employees with caregiving responsibilities based on characteristics protected by the laws enforced by the EEOC, including caregivers’ sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, association with an individual with a disability, or genetic information (including family medical history). These protections are available to workers with any type of caregiving responsibilities, including care for children, spouses, partners, relatives, individuals with disabilities, or others.

State or local laws may provide additional protections for workers with caregiving responsibilities. Employees with caregiving responsibilities also may have rights under other laws, including the Family and Medical Leave Act or similar state or local laws.

I.4. Should employers and employees be aware of any other pandemic-related caregiver discrimination issues? (3/14/22)

Yes. In this What You Should Know document, the EEOC addresses several different types of potential pandemic-related caregiver discrimination. For example:

A.10 addresses employer inquiries about family members with COVID-19 or related symptoms.

C.5 addresses employer-imposed start date postponements or offer withdrawals for pregnant applicants.

D.13 addresses whether employees are entitled to accommodations to avoid exposing family members at high risk of complications from COVID-19.

J.1 and J.2 address excluding employees from the workplace based on pregnancy and accommodating pregnancy.

K.2 addresses pregnancy accommodation requests related to vaccination.

K.3 addresses employer encouragement of vaccination of family members.

K.13 addresses decisions not to be vaccinated due to pregnancy.

K.18 addresses GINA and incentives for non-employer-provided family member vaccinations or employer requests for documentation of family member vaccinations.

K.20 addresses GINA and incentives for employer-provided family member vaccinations.

K.21 addresses GINA and family member vaccinations without incentives.

For general information about caregiver discrimination and federal employment discrimination laws, see the EEOC’s policy guidance, associated fact sheet, and best practices

 document.

EEOC Updates Its Religious Accommodation Discussion on COVID-19 Guidance

On March 1, the EEOC updated its COVID Q&A Guidance concerning religious accommodations of mandatory vaccination requirements.  No explanation was given for the update.  The new guidance follows

L. Vaccinations – Title VII Religious Objections to COVID-19 Vaccine Requirements

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation. See generally Section 12: Religious Discrimination; EEOC Guidelines on Discrimination Because of Religion. Although other laws, such as the Religious Freedom Restoration Act, also may protect religious freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII.

L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII? (3/1/22)

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances. Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to explain the conflict and the religious basis for it.

The same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to them. See Introduction to Section K, above.

As a best practice, an employer should provide employees and applicants with information about whom to contact and the proper procedures for requesting a religious accommodation.

As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic. (Note: Individuals not employed by the EEOC should not submit this form to the EEOC to request a religious accommodation.)

L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information? (3/1/22)

Generally, under Title VII, an employer should proceed on the assumption that a request for religious accommodation is based on sincerely held religious beliefs, practices, or observances. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation. See generally Section 12-IV.A.2: Religious Discrimination.

The definition of “religion” under Title VII protects both traditional and nontraditional religious beliefs, practices, or observances, including those that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, practices, or observances, employees may be asked to explain the religious nature of their belief, practice, or observance and should not assume that the employer already knows or understands it.

Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching. See discussion of “sincerity” below; see generally Section 12-I.A.1: Religious Discrimination (definition of religion).

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

If an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? (3/1/22)

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. For suggestions about types of reasonable accommodations for unvaccinated employees, see K.2, K.6, and K.12, above. In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief, practice, or observance without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation. 42 U.S.C. § 2000e(j). The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business—including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

Courts have found Title VII undue hardship where, for example, the religious accommodation would violate federal law, impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. For a more detailed discussion, see Section 12-IV.B: Religious Discrimination (discussing undue hardship)..

An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on speculative or hypothetical hardship when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation, i.e., the cumulative cost or burden on the employer. See K.12 for additional considerations relevant to the undue hardship analysis.

L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, practices, or observances, does it have to grant all such requests? (3/1/22)

No. The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting employees from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employees’ duties, the location in which the employees must or can perform their duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. A mere assumption that many more employees might seek a religious accommodation—or the same accommodation—to the vaccination requirement in the future is not evidence of undue hardship, but the employer may consider the cumulative cost or burden of granting accommodations to other employees.

L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? (3/1/22)

An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship. See, e.g., K.2. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.

L.6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it? (3/1/22)

The obligation to provide religious accommodations absent undue hardship is a continuing obligation that allows for changing circumstances. Employees’ sincerely held religious beliefs, practices, or observances may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances. Employers must consider whether there are alternative accommodations that would not impose an undue hardship. As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.

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. 

Recent Developments Concerning Mandatory Pre-dispute Arbitration

 

In light of the recent federal legislation carving out sexual assault and sexual harassment cases from the provisions of mandatory pre-dispute arbitration, it is worth remembering that mandatory arbitration is not as one-sided as some may think.  There were several cases decided within last year which indicated that arbitrations are not automatically compelled.   None of these decisions involved sexual harassment or assault allegations.   In Robie v. Maxill, Inc., 2021-Ohio-2264, the court remanded the dispute for the trial court to conduct an evidentiary hearing on the alleged unconscionability of the arbitration agreement.  In Boykin v. Family Dollar Stores, 3 F.4th 821 (6th Cir. 2021), the Court remanded the dispute so that the trial court could evaluate whether the underlying contract had even been made.   Finally, in Ciccio v. SmileDirectClub, LLC, 2 F.4th 577 (6th Cir. 2021), the Court held that the AAA Administrator lacked authority to determine the arbitrability of the dispute; only the arbitrator was authorized to conduct that analysis.

In Robie, the plaintiff alleged that she had been fired in retaliation for complaining about illegal compensation practices (i.e., being required to work without pay answering client questions while she was on furlough and receiving unemployment compensation).  The trial court granted the employer’s motion to stay pending arbitration.  The Trumbull County Court of Appeals found that the trial court was typically not required to conduct an evidentiary hearing before staying litigation pending arbitration, but was required to consider evidence that the agreement was unconscionable if so alleged.   The case was remanded on that issue.

In Boykin, the plaintiff alleged that he had been unlawfully fired on account of his age and race.  The employer moved for judgment under Rule 12(b)(3) and to compel arbitration based on an e-signed agreement.  The trial court dismissed the case under Rule 12(b)(6) even though it considered evidence outside the pleadings.  The Sixth Circuit reversed:

Although the Federal Arbitration Act requires a court to summarily compel arbitration upon a party’s request, the court may do so only if the opposing side has not put the making of the arbitration contract “in issue.” 9 U.S.C. § 4. The district court in this case should have evaluated whether Boykin adequately challenged the making of the contract using the standards that apply on summary judgment. And Boykin’s evidence created a genuine issue of fact over whether he electronically accepted the contract or otherwise learned of Family Dollar’s arbitration policy. Although his affidavit denying that he accepted the contract may have been “self-serving,” that description alone does not provide a valid basis to ignore it.

In Ciccio, a group of plaintiffs brought their claims (mostly relating to false advertising) in court, but the appellant voluntarily dismissed and submitted his claim to the AAA in accordance with a previously signed arbitration agreement.  However, the AAA Administer refused to accept it unless the plaintiff signed a new post-dispute arbitration agreement, which he refused to do.  When the plaintiff returned to court, the trial judge found he had satisfied his obligations under the arbitration agreement, meaning that his dispute was not covered by the agreement.  The Sixth Circuit reversed and ordered the dispute to be submitted to an arbitrator (rather than the AAA administrator) to determine arbitrability.

But whether an arbitration agreement covers a dispute is a gateway question of arbitrability, and here the parties delegated such questions to an arbitrator. Under the agreement and the incorporated AAA rules, it was improper for an administrator to effectively answer that gateway question or to overlook it altogether . . .

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.

Congress Amends FAA to Restrict Mandatory Arbitration and Class Action Waivers of Sexual Assault and Harassment Claims

President Biden is expected to sign H.R.4445, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” to amend the Federal Arbitration Act in Chapter 9 of the U.S. Code and permit sexual harassment victims to reject mandatory pre-dispute arbitration and class action waivers of sexual assault, sexual contact and harassment claims.   It will apply to any disputes or claims which arise or accrue after the Act’s enactment.  Courts and not arbitrators will determine the applicability of the statute, regardless of the terms of any agreement to the contrary.  “An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law.”

The text of the statute applies only to pre-dispute waivers, such as contained in employment and separation agreements.  Only named class representatives can make the decision, not unnamed members of the class.  The Act applies to sexual harassment that arises under any federal, state or tribal law. The criminal statute cited by the statute defines sexual contact to include:

the intentional touching, either directly or through the clothing, of the  . . . , groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

(I have edited this quotation to avoid getting caught in spam software, which is why I am also not quoting the criminal statute for sexual assault at 18 U.S.C. §2246).

The “meat” of the Act is as follows:

§ 402. No validity or enforceability.

“(a) In General.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

“(b) Determination Of Applicability.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”.

As mentioned, it also amends the Federal Arbitration Act by adding the new Chapter 4 to the Table and as follows:

§  2 A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract OR AS OTHERWISE PROVIDED IN CHAPTER 4.

§208  APPLICATION.  Chapter 1 applies to actions and proceedings brought under this chapter to the extent that chapter is not in conflict with this chapter or the Convention as ratified by the United States. THIS CHAPTER APPLIES TO THE EXTENT THAT THIS CHAPTER IS NOT IN CONFLICT WITH CHAPTER 4.

§307. APPLICATION. Chapter 1 applies to actions and proceedings brought under this chapter to the extent chapter 1 is not in conflict with this chapter or the Inter-American Convention as ratified by the United States. THIS CHAPTER APPLIES TO THE EXTENT THAT THIS CHAPTER IS NOT IN CONFLICT WITH CHAPTER 4.

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.

Sixth Circuit: Reassigning Shifts to Achieve Racial Diversity Can Constitute Actionable Race Discrimination.

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.4^th 672 (6^th 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.