Employees suing for discrimination have to prove that they suffered an adverse employment action, right? Maybe not, according to the Sixth Circuit Court of Appeals’ decision in Litton v. Talawanda School District, No. 10-3559 (June 2012).

Litton was the head custodian at Talawanda High School in Oxford, Ohio. During a restructuring of the Talawanda School District’s custodial division, the District removed Litton’s head custodian title and transferred him to a middle school with the same pay, hours, and responsibilities. Although Litton applied for several other lateral positions, he did not receive any of them. Alleging that the District demoted him because of his race, Litton sued. At trial, while the jury found that race was the primary motivation for the District’s treatment of Litton, the jury also found that Litton did not suffer any adverse employment action as a result of the District’s alleged discrimination.

It is well-settled in all federal circuits that the McDonnell Douglas burden-shifting framework, the standard under which plaintiffs must prove a prima facie case of disparate treatment discrimination through circumstantial evidence, requires plaintiffs to prove, among other things, that their employers subjected them to an adverse employment action (such as termination, demotion, decrease in pay, etc.) to maintain an actionable claim for disparate treatment discrimination. In Litton, however, the Sixth Circuit sidestepped the McDonnell Douglas framework, stating, “once the case proceed[s] to trial . . . we are no longer concerned with whether the plaintiff established a prima facie case, but instead focus on the actual question of discrimination.”

While subtle, the Sixth Circuit’s holding green lights claims for “lamentable-but-benign discrimination,” as suggested by Chief Judge Batchelder in her vehement dissent. As Judge Batchelder pointed out, under the new law of Litton, if no adverse action is required, then an employee could sue for being promoted because of his or her race, which is “nonsensical.” In practice, under Litton, plaintiffs need only survive summary judgment (which requires them to prove only that the evidence is not “so one-sided that [the defendant] must prevail as a matter of law”) to completely remove the issue of whether they suffered an adverse employment action from the case.

Going forward, employers will need to heavily focus on the adverse employment action issue during discovery and at the summary judgment stage because under Litton, that prong of the case essentially vanishes after summary judgment. It remains to be seen whether other circuits will follow this rationale.

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