Last night, I read about a black female educator and school administrator who claimed that her employer agreed to pay for her to attend a training session but later reneged, instead offering to pay for her to attend in two years. So, she paid for it herself.
And then she sued her employer.
The school administrator — we’ll call her the “plaintiff” — claimed that the defendant had discriminated against her by refusing to pay for her to attend the training but agreeing to pay for similarly situated white males to attend.
The lower court dismissed the case, ruling that Title VII of the Civil Rights Act of 1964 protects employees against only “ultimate employment decisions,” and it found that a failure to pay for training (as opposed to, say, a termination of employment) was not such a decision.
Later, in August 2023, the Fifth Circuit Court of Appeals changed the law for the Fifth Circuit by concluding that the universe of actionable adverse employment actions under Title VII transcends “ultimate employment decisions” to any discrimination in the “terms, conditions, or privileges” of employment.
So when the school administrator’s appeal arrived at the Fifth Circuit, there was a set of rules. The plaintiff emphasized that payment for her training could constitute a “privilege” under that term’s plain meaning. She also stressed that because she had to pay for the training herself, the defendant’s actions also affected her “compensation.”
Obligated to construe the phrase “terms, conditions, or privileges” broadly, the Fifth Circuit concluded that the plaintiff had pled “adversity.”
Plus, the harm she claimed to have suffered wasn’t so small — what legal nerds may describe as a “de minimis injury” — that Title VII could afford her some relief if she prevailed. In plain English, the plaintiff wasn’t arguing over some mere trifle. She went out of pocket to pay $2,000 for the training, an expense the defendant initially promised to pay.
This is one of these “your mileage may vary” decisions that depend on where your company does business. Perhaps the Supreme Court will shed further light on the subject for everyone when it examines whether certain lateral transfers could violate Title VII. Oral argument in that case is set for later this year.