In Title VII disparate-treatment, employment-discrimination cases, the term “adverse employment action” originally developed as judicial shorthand for the statute’s text, which broadly prohibits any discriminatory conduct by an employer against an employee based on the employee's race, color, religion, sex, or national origin. See 42 U.S.C. 2000e-2(a)(1). But what started simply as shorthand has taken on a life of its own and now improperly limits the statute’s reach. The Fifth Circuit’s version of the adverse-employment-action rule stands out as especially improper: Only an “ultimate employment decision”—a refusal to hire, a firing, a demotion, or the like—constitutes impermissible discrimination.
In this amicus brief, we urge the Supreme Court to grant review and overturn the Fifth Circuit's standard. We argue, first, that the Fifth Circuit's ultimate-employment-decision standard is inconsistent with Title VII’s text and the Supreme Court’s Title VII decisions. Next, we show that the Fifth Circuit’s rule excludes many discriminatory employment practices that are unlawful in its sister circuits. The stories of discrimination victims from these other jurisdictions demonstrate that the Fifth Circuit’s approach is wrong. These individuals suffered discrimination that Title VII prohibits, but the Fifth Circuit’s standard would enable their employers to discriminate without consequence. Finally, we propose a standard consistent with Title VII’s text and Supreme Court precedent: As long as the employer’s intentional, discriminatory conduct imposes meaningful harm on the employee, it is prohibited by, and may be remedied under, Title VII.
Wolfman, Brian; François, Aderson B.; and Schnapper, Eric, "Brief of Brian Wolfman, Aderson B. Francois, and Eric Schnapper as Amici Curiae in Support of Petitioner in Peterson v. Linear Controls Incorporated, No. 18-1401 (U.S. Supreme Court June 6, 2019)" (2019). U.S. Supreme Court Briefs. 81.