Was the bar for Actionable Federal Discrimination Claims Just Lowered?

When I first started practicing law in 1991, the analysis for state and federal civil rights laws was nearly analogous.  You could freely cite a federal case that ruled in the employer’s favor and the state court would “find it persuasive” and rely upon it.

In fact, back in 1999, I was able to get the Michigan Court of Appeals to rely, in part, on a line of federal cases that established that a plaintiff had to show she suffered a materially adverse employment action in order to bring a discrimination claim under the Elliott-Larsen Civil Rights Act, our state’s primary civil rights law. The published case is Wilcoxon v Minnesota Mining Manufacturing Company, 235 Mich App 347 (1999). I remember writing the appellate brief in my motel room at Walt Disney World.  It wasn’t quite how I imagined the trip, but the results were reward enough. Well, almost.

But over the years, the analysis gap between Michigan’s civil rights law and federal law has broadened, and there is no doubt that state law is far more favorable to employers than federal law, especially in our federal appellate circuit.

Since 2000, I have watched the decisions of the U.S. Court of Appeals for the Sixth Circuit become more and more pro-employee.  Once it would have been nearly malpractice not to have timely removed a case from the Wayne County Circuit Court to the federal court in the eastern district of Michigan. 

Threat v City of Cleveland, just published in July, is yet another example of why I generally prefer to stay in state court. It’s not that I disagree with the appellate court’s ruling (because I don’t), it’s the manner in which the court explains the sort of employment action that is necessary to support a claim under Title VII (the primary federal civil rights statute).   It’s a case that will be cited often by plaintiff attorneys.

First, let me tell you a little about the facts.  The five plaintiffs were all captains in the Emergency Medical Service (EMS) division, all in the same union, and all African Americans. Each fall, the captains would bid on their shifts for the upcoming year, and it would be decided on the basis of seniority. The collective bargaining agreement, however, allowed the EMS commissioner to change the shifts for up to four captains even if it conflicted with the captains’ choices and violated their seniority rights.

As it turned out, the bidding in 2017 for 2018 shifts resulted with only African American captains on the day shift. The EMS commissioner wanted more diversity and so she removed Anderson (who was African American) from the day shift and placed a white captain on the shift. The white captain didn’t like it either because working days caused a problem with his family visitation rights.  

Is there anyone else besides me who is shaking their head and thinking how on earth did she ever think this was a good idea?

After informal discussions concerning the race-based assignments (and they were) went nowhere, one of the captains filed a charge with the Equal Employment Opportunity Commission.  Meanwhile the EMS Commissioner asked the captains to re-bid. Guess what?  The same results occurred and the EMS Commissioner again reassigned Anderson to the night shift to create diversity. OK, what do they say about doing the same thing over and over and expecting a different result?

Well, there is more to the story including leaks to the press, unfair labor practice charges, and the lawsuit filed in federal court, but let’s jump ahead towards the part that ruffled my feathers.  

The appellate court first asked: “Do discriminatory shift changes based on race violate Title VII of the Civil Rights Act of 1964? We think so.” No argument here. If I was writing the opinion, I may have just ended there with a “duh.”

The appellate court’s analysis meandered around, first about shift schedules being a term of employment (noting that “its not even clear that we need dictionaries to confirm what fluent speakers of English know”) to how a preferred shift  was a privilege of seniority, and, finally, concluding that moving an employee from days to nights alters the terms and privileges of employment.  

But the city argued that Title VII only makes discrimination unlawful where the plaintiff suffers a “materially ‘adverse employment action’” and shift changes don’t rise to that level. The city cited a line of cases that found that shift assignments did not rise to that level. But the appellate court rejected the idea that this was a “categorical rule.” It also rejected the city’s argument that only employment decisions that cause the employee economic harm will be actionable.

The appellate court explained that “[t]he point of our cases is to convey that an employer’s alteration of the ‘terms’ or ‘privileges’ of an employee’s work is actionable only when it is ‘adverse’ and ‘material’ to the work. To ‘discriminate’ reasonably sweeps in some form of an adversity and a materiality threshold. It prevents ‘the undefined word ‘discrimination’ from ‘command[ing] judges to supervise the minutiae of personnel management.’ …It ensures that a discrimination claim involves a meaningful difference in the terms of employment and one that injures the affected employee.”

I think we all agree with this. So let’s jump to the part that bothers me:

At the same time, our approach honors a de minimis exception that forms the backdrop of all laws. The “doctrine de minimis non curat lex (the law does not take account of trifles)” has “roots [that] stretch to ancient soil.” So ancient, the “old law maxim” was already venerable at the founding. From the beginning, the de minimis canon has been “part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.”

 … Yes, “hundreds if not thousands of decisions say that an ‘adverse employment action’ is essential to the plaintiff’s prima facie case” even though “that term does not appear in any employment-discrimination statute.” And, yes, the same could be said about a “materiality” requirement. But we take these innovations to be shorthand for the operative words in the statute and otherwise to incorporate a de minimis exception to Title VII.

But de minimis means de minimis, and shorthand characterizations of laws should not stray. … “[T]o give the de minimis rule too broad a reach would contradict congressional intent by denying proper effect to a statute.” That concern, however, must be balance against the reality that “we cannot just toss the de minimis rule aside.” (internal citations omitted).

There it is. The appellate court seemingly moved from requiring a materially adverse employment action to allowing any employment action that is more than de minimis to support the discrimination claim. I have heard it said that bad facts make bad law. I think we now understand that maxim. Thank goodness we still have the Wilcoxon case under Elliott-Larsen.

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