Courts Expand the Scope of Actionable Discrimination in Title VII Cases

September 15, 2023
Carolyn Wheeler

Courts have long struggled with the question of whether certain employment decisions can be challenged as discriminatory under Title VII when they do not involve hiring, firing, promotions, or compensation. Sexual harassment law recognizes that working in an abusive environment can provide a basis for a claim that an employee’s terms and conditions of employment have been altered because of sex, race, national origin, religion, age, or disability. There are settled standards for assessing how offensive the environment has to be to support a hostile environment claim. There is far less consistency in the courts’ approach to other employment decisions that affect terms and conditions of employment, such as transfers, denial of training, shift assignments, imposition of performance plans, negative performance reviews, and denial of performance awards. Courts often require that an employee challenging such decisions as discriminatory must show that the decision has some material or tangible effect beyond the decision itself. Recently, several courts have reexamined these legal standards, and the Supreme Court will weigh in next year.

As we explained last year, the U.S. Court of Appeals for the District of Columbia held in Chambers v. District of Columbia that when an employer transfers an employee or denies an employee’s request for a transfer because of the employee’s race, color, religion, sex, or national origin, the employer violates Title VII because that constitutes discrimination in the employee’s “terms, conditions, or privileges” of employment.[1]

Hamilton and discriminatory shift assignments

In Hamilton v. Dallas County,[2] the full court of the U.S. Court of Appeals for the Fifth Circuit held that a policy of assigning work shifts based on sex violated Title VII. In that case, the Dallas County Sheriff’s Department allowed all detention service officers to take two days off each week but only allowed men to select full weekends off. Women did not have that option, so women never got a full weekend off. Nine female officers sued Dallas County challenging this sex-based scheduling policy. The district court held, based on prior precedent, that the scheduling policy did not violate Title VII because the shift assignments did not constitute an “adverse employment action” which the Fifth Circuit had said includes “ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.”  The shift assignments did not change the officers’ pay or benefits. A panel of the Fifth Circuit agreed that this result was compelled by prior decisions, but suggested the full court should reexamine the court’s “ultimate-employment-decision requirement” because it is inconsistent with the text of Title VII.

The Fifth Circuit en banc court reversed the decision below, noting that the facts presented a clear picture of disparate treatment because of the officers’ sex, so the only question was whether the shift assignment policy constituted an actionable adverse employment action. Based on the plain language of the statute prohibiting discrimination in the terms, conditions, or privileges of employment, the court concluded there was no basis for limiting those protections to “ultimate” employment actions. The court noted that the Supreme Court has long held that Title VII allows recovery for all forms of discrimination even where there are no economic or tangible consequences. The court agreed with the defendants that Title VII does not permit liability for “de minimis workplace trifles” but declined to say where that line is drawn because the policy challenged in this case had for more than a “de minimis” effect. The court left it for future cases to determine whether other workplace discrimination constituted a “petty triviality” or “insubstantial annoyance.”[3]

Discriminatory reassignment in the Second Circuit

Unlike the D.C. Circuit, the U.S. Circuit Court of Appeals for the Second Circuit, in Banks v. General Motors, recently held that an employee challenging a discriminatory transfer decision must show the new work assignment was less prestigious, had less desirable responsibilities, or was less conducive to career advancement.[4]  In that case, the plaintiff, Billie Banks, was a safety security supervisor for General Motors who had worked there since 1985. In 2014 Banks brought claims of race and sex discrimination, retaliation, and racial and gender-based harassment. Despite evidence of pervasive racial and sexual harassment, the district court granted summary judgment on her claims because Banks was not the direct target of all the offensive conduct she witnessed. The pervasive harassment led to her taking disability leave to recuperate from the stress it caused, and that in turn led to several discriminatory actions, including denial of leave benefits, delay of her return to work after she indicated she was ready to return, and then an undesirable reassignment. The district court granted summary judgment on all those claims as well. The Second Circuit reversed and remanded on all claims. As relevant here, it held that because the new position to which Banks was assigned had fewer responsibilities and a less desirable shift, it “impacted the ‘compensation, terms, conditions, or privileges of employment’” sufficiently to constitute actionable discrimination. The new position had no supervisory responsibilities, so the court concluded it was a demotion “because it curtailed her responsibilities, reduced her chances for promotion, reduced her rank within the safety department, and put her in a less desirable shift.”

The Supreme Court will decide the standard for actionable discrimination in Muldrow

The differing approaches of the courts of appeals to analyzing discriminatory transfer decisions will be reconciled by the Supreme Court when it decides a case currently on its docket—Muldrow v. City of St. Louis.[5]  Muldrow challenged her transfer from one division of the police department to another based on her sex. The Eighth Circuit held the discriminatory transfer did not violate Title VII because it did not result in a change to her title, salary, or benefits or otherwise cause a significant change in working conditions or responsibilities. The Supreme Court has reframed the question in the case as “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?”[6]  Although the case and decision will focus on discriminatory transfer decisions, the Court’s reasoning should shed light on the proper analysis of claims of discrimination challenging a range of employer actions affecting other terms, conditions, or privileges of employment.


[1]  36 F.4th 870 (D.C. Cir. 2022).

[2]  2023 WL 5316716 (5th Cir. Aug. 18, 2023).

[3]  Note: Ms. Wheeler co-authored an amicus brief on behalf of the National Women’s Law Center and the NAACP Legal Defense Fund in Hamilton.

[4]  —-F.4th—, 2023 WL 5761361 (2d Cir. Sept. 7, 2023).

[5]  30 F.4th 680 (8th Cir. 2022), cert. granted in part, No. 22-193, 143 S. Ct. 2686 (June 30, 2023).

[6] Note: Ms. Wheeler co-authored an amicus brief on behalf of the National Employment Lawyers Association, the National Women’s Law Center, and the NAACP Legal and Defense Fund in Muldrow.