Requiring an Employee to Pay for a Leadership Program May Be Discrimination

Following its recent decision that an “adverse employment action” under Title VII need not be an “ultimate employment action” (as discussed in our August 2023 E-Update), the U.S. Court of Appeals for the Fifth Circuit has now provided a further example of what kind of employment action is sufficient to support a discrimination claim.

In Harrison v. Brookhaven School District, the school district typically paid the fees for a leadership training program for prospective school superintendents. A black educator and school administrator was accepted into the program, but the school superintendent reneged on his promise to pay her fees and offered to pay for her to attend in two years. However, because she had been accepted for the coming year, she paid the fees herself. She sued, arguing that the school district had engaged in discrimination because it refused to pay her fees while paying for white males to attend. The federal district court dismissed her claim on the basis that failing to pay for a leadership program was not an “ultimate employment action.”

The Fifth Circuit, however, referenced its recent decision that rejected the “ultimate employment decision” standard. Consequently, it found that the refusal to pay for the program could be discrimination in the “terms, conditions, or privileges” of the administrator’s employment. In addition, the Fifth Circuit quoted the Supreme Court that, “A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.” And keeping in mind that Title VII is not a “general civility code,” the Fifth Circuit reiterated that de minimis (or minimal) injuries do not rise to the level of a Title VII violation – however, in this case, the employee was required to pay approximately $2000 out of her own pocket, which the Fifth Circuit found to be more than a de minimis injury.

This case reinforces the need for employers to be thoughtful and consistent – not only with what were formerly known as “ultimate employment actions” like hiring, promotions, pay increases, and terminations – but also with less significant, but still impactful, benefits and actions.