Warning – Attempts to Diversify Can Result in Liability for Race Discrimination

An employer’s attempt to diversify its day shift by reassigning a Black employee to a less-desirable night shift resulted in a violation of Title VII, according to the U.S. Court of Appeals for the Sixth Circuit.

In Threat v. City of Cleveland, fire captains bid on shift assignments based on seniority, but the applicable collective bargaining agreement gives the City the right to transfer up to four captains to a different shift regardless of their preference. Following the bidding process, a day shift ended up being staffed only by Black captains. The City transferred one to the night shift and replaced him with a White captain in order to “diversify the shift.” Following complaints of race discrimination and a rebidding process, the same employee again ended up on a day shift of all Black captains and was transferred to a night shift because of “diversity.” The Black captains then sued for race discrimination under Title VII and state law.

In order to sustain a claim of race discrimination under Title VII, a plaintiff must establish that they were subjected to a “materially adverse employment action” because of their race. In this case, there was no question that the shift change was based on race, but the City argued that a shift change is not a material action. The Sixth Circuit, however, disagreed, finding that the shift change controlled when and with whom the employee worked, prohibited him from exercising his seniority rights, and diminished his supervisory responsibilities. Of particular interest, the Sixth Circuit acknowledged that it had previously and repeatedly held that shift changes were not adverse employment actions under Title VII. But it stated that those decisions did not create a categorical rule; rather context matters. It also clarified that an employment action does not require economic harm in order to be adverse for purposes of Title VII.

There are several lessons here for employers. The recent heightened attention to diversity in the workplace has caused some employers to engage in actions in pursuit of diversity that can, in fact, create liability for the employer under Title VII. Making employment decisions based on race is extremely risky and should be carefully considered and vetted with counsel. Moreover, in some jurisdictions, including the Sixth Circuit, an employment action does not necessarily require an economic impact in order to be considered “materially adverse.”