Last month, a federal appellate court concluded that training delays, a denied vacation request, and a transfer to a different shift that interfered with the plaintiff’s childcare arrangements could all support a discrimination claim—even though the plaintiff never lost his job.
It could be the new normal since the Supreme Court’s decision in Muldrow v. City of St. Louis, Missouri.
In Muldrow, the Supreme Court concluded that a plaintiff claiming discrimination based on disparate treatment under Title VII “must show some harm respecting an identifiable term or condition of employment. What the [plaintiff] does not have to show, according to the relevant text, is that the harm incurred was `significant.’ Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar” (cleaned up).
In practice, a plaintiff who believes that an employer discriminated against them based on their color can come to court with much less than a claim predicated on a termination or failure to hire.
In the Seventh Circuit decision I read yesterday, the plaintiff, a purchasing assistant representing himself (i.e., no lawyer), claimed seven discriminatory acts or related sets of acts, including these three:
- the defendant delayed for three years his training on a particular machine;
- the defendant denied his request for vacation time while granting equivalent requests by other workers; and
- the defendant transferred him to a different shift even though it knew this would cause him problems raising a young child.
In 2023, the lower court dismissed all three, concluding that the plaintiff had not alleged an adverse employment action. That was before the Supreme Court’s 2024 decision in Muldrow.
On appeal, the Seventh Circuit applied Muldrow to the three claimed acts of discrimination and reached a different conclusion:
Each of the three things we have mentioned entails “some harm”. Deferred training can mean deferred promotions or deferred raises. Denial of one’s preferred vacation schedule can make the vacation less pleasant—not just because it may end up off-season at the destination but also because the goal of a vacation may be to see family members who will not be available at a different time…Likewise with the third allegation: if the employer considers family circumstances when assigning shifts, it must do so without regard to color, because inability to care for a child is a deeply felt loss for all parents.
Therefore, these claims — and remember, they’re just claims — survive for now.
Let’s keep it 100. Are they valuable claims? Probably not. But remember that Title VII is a fee-shifting statute, and the meter will run. So, if a represented plaintiff prevails, their attorney can recover reasonable fees and costs. Plus, the company must pay its own lawyers.
What a time to be an employment litigator…like me 😘.