Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fail to hire or to discharge an individual or otherwise discriminate against such individual “with respect to his [or her] compensation, terms, conditions, or privileges of employment” because of a protected characteristic, including race.
To establish a claim of discrimination under Title VII, an individual must first show that he or she was subject to an “adverse employment action,” which has been judicially defined as an action that affects the terms and conditions of employment and which can include a discharge from employment, a failure to hire, a demotion, or the payment of unequal compensation.
The Fifth Circuit Court of Appeals historically has been one of the most restrictive federal appellate courts in its definition of an adverse employment action. However, in Thompson v. City of Waco, Texas, No. 13-50718 (September 3, 2014), the court recently held that a city police department’s restriction of a detective’s responsibilities after his return from a disciplinary suspension was sufficient to fall within the definition of “adverse employment action,” and to overcome the city’s motion to dismiss his lawsuit.
The Waco, Texas Police Department suspended the plaintiff, an African American police detective, and two white detectives following allegations that the three had falsified time sheets. After reinstating all three detectives, the City of Waco imposed restrictions on the plaintiff that it did not impose on the two white detectives. The restrictions precluded the plaintiff from (1) searching for evidence without supervision or logging in that evidence after discovery; (2) acting as the lead investigator on a matter, affiant in a criminal case, or evidence officer at a crime scene; and (3) working in an undercover capacity.
According to the plaintiff, his new responsibilities were “significantly different,” less prestigious, less interesting, and less likely to lead to promotion than his prior responsibilities.
The plaintiff sued the City of Waco which moved to dismiss the suit arguing that the plaintiff had failed to set forth the required “adverse employment action” necessary to support a Title VII discrimination claim. The district court dismissed the plaintiff’s claims, finding that he had failed to allege an adverse employment action.
The district court’s decision was reversed by the Fifth Circuit, which found that while the mere “loss of some job responsibilities” does not automatically constitute an adverse employment action, it also does not mean that a change or loss of some responsibilities can never establish an actionable discrimination claim.
The plaintiff alleged that the Waco Police Department rewrote and restricted his job description to the extent that he now functions as an assistant to the other detectives, rather than a true detective in his own right. The plaintiff claimed to have lost essential job functions and stated that he no longer used his education and skills to act as a detective—circumstances that he contends are materially adverse. According to the Fifth Circuit, these alleged circumstances were materially adverse, and the plaintiff had stated a “plausible claim that he was subject to the equivalent of a demotion.”
The Fifth Circuit was quick to point out that it has “no view on Thompson’s likelihood of success” and that such determination is fact-intensive and “better suited for the summary-judgment or trial stage.” However, Thompson’s claims, as stated, overcome the initial hurdle required by Title VII to set forth an adverse employment action.
The lesson for employers here is clear: If the terms and conditions of employment are changed to an extent that they change the basic nature of the job itself—even without a diminution in the salary or benefits associated with the job—such action may be sufficiently “adverse” to support a discrimination claim under Title VII.