Micthev, CC BY-SA 3.0, via Wikimedia Commons
I have a not-so-hypothetical situation for you. Let’s see how you handle it.
ABC Company has a seniority-based bidding system to assign shifts, giving longer-tenured managers shift preference. However, the president of the company has the discretion to readjust the shifts at her discretion.
There are two shifts: the day shift and the night shift.
Three black managers bid to work on the day shift together. Based on their seniority, they would get their choice. However, if they do, the day shift will only have black managers on the shift. Therefore, the president decides to move one of the black managers to the night shift, replacing him on the day shift with a white manager to “create diversity.”
Got it?
Ok, here’s the first question: Did the employer discriminate against the black manager by treating him differently because of his race?
According to this recent Sixth Circuit opinion, it’s not really a close call. It concluded that “[t]here also is little room for debate that the [employer] treated the black [employees] differently ‘because of’ their ‘race.'”
But, Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
So, here’s the next question: Do shift schedules amount to “terms” of employment?
Don’t overthink this one either, folks. The Sixth Circuit didn’t:
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. Surely an 8:00 start time is a term of employment. And surely the distinction between an 8:00 a.m. and an 8:00 p.m. start time is a term of employment. How could the when of employment not be a term of employment?
Does that mean that any shift change could potentially be an adverse action? Not necessarily, because the law does not take account of trifles. However, “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…”
It’s like restoring an employee returning from Family and Medical Act leave to an equivalent job.
Where are you going with this, Eric?
When an employee returns from FMLA leave, an employer must restore that person to the same or “equivalent job.” An equivalent position must have substantially similar duties, conditions, responsibilities, privileges, and status as the employee’s original position. The employer cannot force an employee to accept a different position against their wishes. However, the equivalent job requirement does not extend to de minimis, intangible or unmeasurable aspects of the job.
So, adjusting someone’s shift by a few minutes would be no big deal. But, changing someone’s shift by several hours without their consent is a problem.
In other words, it depends. But, changing someone’s shift could be the adverse action the perfects a discrimination claim.