Delayed Training, Denied Vacation, and Job Transfer May Now Be Adverse Employment Actions

In Muldrow v. City of St. Louis, the Supreme Court ruled that adverse employment actions need not be “significant” in order to constitute a violation of Title VII’s prohibition against discrimination; instead, a plaintiff need show only “some harm respecting an identifiable term or condition of employment.” We warned in our April 17, 2024 E-lert on the Muldrow case that many employment actions that previously were found insufficient to establish a discrimination claim may now create liability under the Supreme Court’s lowered standard. And now, the U.S. Court of Appeals for the Seventh Circuit has fulfilled that prediction.

In Thomas v. JBS Green Bay, Inc.¸ the employee alleged that his employer discriminated against him because of his color. In support of his claim, he pointed to a number of actions including delayed training on a particular machine, denied vacation (when requests by others were granted), and a job transfer that caused childcare issues. The case was initially dismissed for failure to state a viable claim by the trial court, which found that the events of which the employee complained, as described in the complaint, were not sufficiently serious to support a Title VII claim and the case need not proceed forward.

Following the trial court’s decision, however, the Supreme Court issued Muldrow. And, according to the Seventh Circuit, the trial court erred in dismissing the employee’s claims based only on the allegations in the complaint, since each of the complained-of actions entailed “some harm” to a term or condition or employment. The Seventh Circuit noted that “deferred training can mean deferred promotions or deferred raises.” In addition, “denial of one’s preferred vacation schedule can make the vacation less pleasant” due to being off-season or lack of family availability. And finally, the “inability to care for a child is a deeply felt loss for all parents.” Thus, the Seventh Circuit found that the employee had alleged sufficient injury for the case to proceed – but whether that injury was enough to establish liability would be determined at a later stage in the case.

So, the lesson for employers is exactly what we said before – employment actions that previously may not have been enough to impose liability under the anti-discrimination statutes, like training, vacation schedules, and job transfers, may now be sufficient to do so. It is critically important for employers to ensure that any actions taken are legitimate business decisions and that all employees are treated consistently.