Discrimination in Terms and Conditions/Adverse Employment Actions

Discrimination in terms and conditions of employment and adverse employment action

In Washington v. Illinois Department of Revenue (7th Cir. 2005) this court reports Title VII does not define “discrimination,” the key term not only for §2000e-2(a) but also for §2000e-3(a), as the latter section treats retaliation as a form of discrimination. Lack of a definition leaves unresolved the question how important a difference must be to count as “discrimination.”
The Washington Court goes on to say, the Supreme Court has held that, although any “tangible employment action”—lower pay or another “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)—may be treated as “discrimination,” only a “severe or pervasive” change in the daily “conditions” of employment may be treated as discriminatory. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)

The materiality requirement is built into the word “discrimination” and thus must apply to the anti-retaliation rule in §2000e-3(a), whether the supposedly retaliatory acts occur in or out of the workplace. Now “material” is one of those protean words that resist further definition. This holds open some potential to say that an act that would be immaterial in some situations is material in others. As we remarked in Herrnreiter, 315 F.3d at 746, the sort of response deemed immaterial to self-interested charges could be material to others, and thus could be deemed discriminatory. To recapitulate: “discrimination” entails a requirement that the employer’s challenged action would have been material to a reasonable employee, which means that the same requirement applies to §2000e-3(a), the anti-retaliation clause, as well as the other provisions in Title VII that use the word “discrimination.” An employer’s action is not material under §2000e-3(a) if it would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Id.

In Maalik v. International Union of Elevator Constructors, Local 2 (7th Cir. 2006) this court reports when the grievance concerns terms and conditions of employment, only the employer is liable. Title VII, 42 U.S.C. §2000e-2(a), imposes the duty of providing nondiscriminatory terms and conditions of employment on employers only. Section 703(d) provides: “It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”

Title VII makes both employers and unions liable for their own conduct, not that of employees or members. Thus when line employees engage in discrimination, employers are not automatically liable; only if they know (or ought to know) what is going on and choose to do nothing (or select ineffectual steps when better ones are available) are they liable. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (explaining the circumstances under which an employer’s feckless responses to intentional misconduct by an employee means that the misconduct is attributed to the firm); Faragher v. Boca Raton, 524 U.S. 775 (1998). As in Goodman and Indiana Bell, however, turning a blind eye to members’ or employees’ discrimination is not reasonable.