{"id":10156,"date":"2026-04-04T16:10:11","date_gmt":"2026-04-04T16:10:11","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/doj-and-eeoc-ask-supreme-court-to-clarify-what-employment-actions-can-be-the-basis-for-a-title-vii-discrimination-suit\/"},"modified":"2026-04-04T16:10:11","modified_gmt":"2026-04-04T16:10:11","slug":"doj-and-eeoc-ask-supreme-court-to-clarify-what-employment-actions-can-be-the-basis-for-a-title-vii-discrimination-suit","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/doj-and-eeoc-ask-supreme-court-to-clarify-what-employment-actions-can-be-the-basis-for-a-title-vii-discrimination-suit\/","title":{"rendered":"DOJ and EEOC Ask Supreme Court to Clarify What Employment Actions Can Be the Basis for a Title VII Discrimination Suit"},"content":{"rendered":"\n
\n

On June 30, 2023, the Supreme Court granted certiorari in Muldrow <\/i>v. City of St. Louis <\/i>on the limited question of if \u201cTitle VII prohibit[s] discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage.\u201d The Court will hear the case during its October 2023 term and issue its decision by June 2024.<\/p>\n

*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n

On May 19, the Department of Justice (\u201cDOJ\u201d) and the U.S. Equal Employment Opportunity Commission (\u201cEEOC\u201d) urged the Supreme Court to hear two cases addressing what employment actions can be the basis for a Title VII discrimination suit, arguing that certain appeals courts are currently applying the law\u2019s protections too narrowly by restricting Title VII to cover only employment actions such as hirings, firings, promotions and demotions.<\/p>\n

*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n

Section 703(a)(1) of Title VII of the Civil Rights Act of 1964<\/a> prohibits discrimination with respect to an applicant\u2019s or worker\u2019s \u201ccompensation, terms, conditions, or privileges of employment\u201d based on protected characteristics, such as race or sex. Courts are divided in their interpretation of the scope of that statutory language, with conflicting interpretations on the question of whether that prohibition includes discrimination as to all employment actions or whether it reaches only a narrower set of employment actions.<\/p>\n

Some courts have interpreted this language narrowly to include only a \u201ctangible change in working conditions that produces a material employment disadvantage,\u201d such as terminations, pay decreases, or demotions. By contrast, other courts have taken a broader view and have interpreted the statute to apply to actions that do not have a tangible effect on an employee\u2019s compensation or job responsibilities, such as a lateral job transfer or a shift change.<\/p>\n

Two pending petitions for writs of certiorari ask the Supreme Court to resolve this disagreement. In Muldrow<\/i> v. City of St. Louis<\/i>, the plaintiff alleges that, in violation of Title VII, she was removed from a task force and given administrative work because of her gender. In April 2022, the Eighth Circuit ruled that because her title, salary, and benefits did not change, she did not experience an \u201cadverse employment action.\u201d Therefore, the court concluded she could not establish a prima facie case of gender discrimination, and her case could not proceed.<\/p>\n

In Davis<\/i> v. Legal Services Alabama, Inc.<\/i>, the plaintiff, who is Black, was suspended with pay from his job as executive director of a nonprofit legal aid firm while staff complaints against him were investigated. The plaintiff claims that white employees who were alleged to have engaged in worse misconduct faced less harsh employment consequences. In December 2021, the Eleventh Circuit ruled that a paid suspension does not constitute an \u201cadverse employment action\u201d that could trigger Title VII discrimination protection primarily because it does not \u201caffect continued employment or pay.\u201d The Eleventh Circuit noted that paid suspension can be \u201ca useful tool for an employer to hit \u2018pause\u2019 and investigate,\u201d and, as a practical matter, employers should be able to use paid suspension in good faith to investigate an employee\u2019s alleged wrongdoing.<\/p>\n

The DOJ and EEOC jointly filed briefs in each case in response to the Supreme Court\u2019s invitation for the views of the Solicitor General on behalf of the United States government. The DOJ and EEOC urged the Supreme Court to grant certiorari on both petitions to clarify the range of prohibited conduct that can give rise to an actionable Title VII claim, noting that the scope of Title VII protections \u201cis an important and frequently recurring question that has divided the courts of appeals.\u201d<\/p>\n

In their briefs, the DOJ and EEOC argue that the language of Title VII covers a broad range of job actions and that certain courts, including the Eighth and Eleventh Circuits in these cases, have misapplied Title VII\u2019s protections. They argue that by requiring employer conduct to impose \u201cmaterially significant\u201d disadvantages for employees for Title VII protections to be triggered, courts have narrowed the protection afforded by the statute.<\/p>\n

In addition to the Eighth and Eleventh Circuits, the Second, Fourth, Seventh, and Tenth Circuits have required proof that some material or significant harm resulted from the challenged employment action for a Title VII discrimination suit to proceed. The Fifth Circuit has interpreted the statute even more narrowly, holding that discrimination protections only apply to \u201cultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.\u201d Courts adopting this majority view, that some tangible harm is required to give rise to a discrimination claim under Title VII, generally do so on the basis that if only minor changes in working conditions without any reduction in compensation could give rise to an employment claim, then even trivial personnel actions could form the basis of a discrimination suit.<\/p>\n

The DOJ and the EEOC argue that these decisions conflict with Title VII\u2019s objectives, the language of the statute, and decisions from other circuits. In support of their position, the agencies cite the D.C. Circuit\u2019s decision in Chambers <\/i>v. District of Columbia<\/i>, in which the court overturned its prior precedent requiring that employment actions create \u201cobjectively tangible harm\u201d for a Title VII discrimination suit to proceed. The court rejected that requirement as a \u201cjudicial gloss that lacks any textual support.\u201d The court interpreted \u201cterms, conditions, or privileges of employment\u201d broadly, reading the ordinary meaning of the statute and holding that because the phrase is left undefined in the statute, Congress \u201cevince[ed] a[n] \u2026 intent to strike at the entire spectrum of disparate treatment \u2026 in employment.\u201d While the court noted that the scope of the language is \u201cnot without limits,\u201d it did not define those limits. In their brief, the DOJ and the EEOC argue this means that Title VII protections could apply even if an employment action \u201cdoes not result in reduced salary or benefits or worse working conditions.\u201d<\/p>\n

The agencies also cite the Sixth Circuit\u2019s decision in Threat <\/i>v. City of Cleveland, <\/i>in which the court overturned its prior precedent construing Title VII to cover only \u201cmaterially adverse employment actions.\u201d It held that discrimination \u201creasonably sweeps in some form of an adversity and a materiality threshold\u201d that would injure the plaintiff and therefore trigger Title VII protections. The DOJ and the EEOC argue that the requirement for the employment action to be materially adverse \u201cshould be understood as no more than shorthand for the statutory test and a de minimis\u00a0.\u00a0.\u00a0. <\/i>requirement.\u201d<\/p>\n

In light of the divide among lower courts on this issue, with some courts requiring material or significant harm to show prima facie employment discrimination and others interpreting Title VII protections more broadly, the Supreme Court may grant certiorari in these cases or others raising similar issues. If the Court agrees to hear these cases, it may expand or narrow the range of job actions that could give rise to Title VII liability, including those that do not impose materially significant disadvantages for employees. We will provide further updates when the Court takes up the petition for certiorari or should there be any other relevant developments.<\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

On June 30, 2023, the Supreme Court granted certiorari in Muldrow v. City of St. Louis on the limited question of if \u201cTitle VII prohibit[s] discrimination in transfer […]<\/p>\n","protected":false},"author":1,"featured_media":10157,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[651,2550,5474,143,349,1343,1118,451,339,533,913,914],"class_list":["post-10156","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-actions","tag-basis","tag-clarify","tag-court","tag-discrimination","tag-doj","tag-eeoc","tag-employment","tag-suit","tag-supreme","tag-title","tag-vii"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10156","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=10156"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10156\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/10157"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=10156"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=10156"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=10156"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}