How do you prove employment discrimination?
Before we get to what employer acts constitute an adverse employment action, we need to discuss how it fits in with the other elements of an employment discrimination claim. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of gender, religion, national origin, gender identity, and sexual orientation. Likewise age discrimination and disability discrimination are prohibited by the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Age Discrimination in Employment Act of 1967 (“ADEA”). To establish an employment discrimination claim under one of these federal statutes, an employee must either present direct evidence of discrimination or prove the following prima facie elements:
- Membership in a protected class: The employee must show that they are a member of a protected class (e.g., race, color, religion, sex, or national origin) that is protected under Title VII, the ADA, or the ADEA.
- Adverse employment action: The employee must show that they suffered an adverse employment action, such as being fired, demoted, or harassed, that was motivated by discriminatory intent.
- Qualification for the job: The employee must show that they were qualified for the job or position in question at the time of the adverse employment action.
- Replace by or similarly situated employees: The employee must show that they were replaced by a worker outside the protected class or identify one or more similarly situated employees who were not members of the protected class and were treated more favorably.
If an employee can establish these prima facie elements, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the adverse employment action. If the employer meets this burden, the employee must show that the employer’s reason is pretextual and that discrimination was the real motive for the adverse employment action.
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What is considered an adverse employment action?
An adverse employment action will support an employment discrimination claim if the Court determines that the employer’s act is significant enough to alter the terms or conditions of an employee’s employment. Such actions may include refusal to hire, promote, or transfer an employee, demotion or reduction in pay, termination of employment, denial of benefits or leave, harassment, assignment to a less desirable job or shift, or reduction in job responsibilities. In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998), the United States Supreme Court held that an adverse employment action “requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.” On the other hand, de minimis employment actions, which could be described as “mere inconvenience[s] or an alteration of job responsibilities,” are not actionable.
Recently, in Shivers v. Charter Communications, Inc., No. 22-3574, 2023 WL 3244781, at *1 (6th Cir. May 4, 2023), the United States Court of Appeals for the Sixth Circuit provided several examples of what it considered administrative actions that it did not deem sufficient enough to be considered adverse actions.
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Can the denial of necessary training be considered an adverse employment action to support an employment discrimination claim?
Maybe. The denial of necessary training can be considered an adverse employment action under certain circumstances. If the denial of training is motivated by discrimination based on a protected characteristic such as race, sex, religion, age, or national origin, it may constitute a violation of Title VII. For instance, if an employer provides training opportunities to certain employees but denies the same training to other employees based on their protected characteristic, such as their race or sex, it can be considered discrimination. Similarly, if an employee is denied training necessary for their job performance because of their protected characteristic, it can also be considered an adverse employment action that violates Title VII.
In Shivers, the United States Court of Appeals for the Sixth Circuit held that a mere delay in training did not rise to the level of being an adverse employment action: “while Shivers asserts that her initial training on payment research did not adequately prepare her, it is undisputed that she received further training on payment research when she requested it. Thus, there is no indication that the delay in payment research training negatively changed the conditions of her employment or ‘was more disruptive than a mere inconvenience,’ because she ultimately received the training.” Id. at *6.
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Can the denial of computer access be an adverse employment action sufficient to prove a discrimination claim under Title VII?
Yes, the denial of computer access can be an adverse employment action if it is significant enough to alter the terms or conditions of an employee’s employment.
In today’s workplace, computer access is often essential to perform many job duties, and if an employer denies an employee access to a computer, it could have a substantial impact on the employee’s ability to perform their job effectively. For example, an employee who is denied computer access may be unable to communicate with colleagues, access necessary information, or complete work assignments.
If the denial of computer access is motivated by discrimination based on a protected characteristic, such as race, sex, religion, color, or national origin, it may constitute a violation of Title VII. However, it is important to note that not all denials of computer access will necessarily qualify as an adverse employment action under Title VII. The determination of whether a particular action constitutes an adverse employment action will depend on the specific facts and circumstances of the case.
However, under the facts in Shivers, the Sixth Circuit Court of Appeals held that it was insufficient:
Despite an initial one-month delay in gaining access to computer systems, Shivers received access to these systems and could use the credentials of her coworkers to access systems during the delay. See, e.g., Stewart v. Esper, 815 F. App’x 8, 18 (6th Cir. 2020) (holding initial denial of access to a specific computer system was de minimis when plaintiff “received access within a month”). … Moreover, her testimony reveals that she could still access these computer systems, if at all needed, through others.
Id. at * 6.
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Can an increased workload be an adverse employment action to support a claim of workplace discrimination?
An increased workload can be considered an adverse employment action if it is significant enough to alter the terms or conditions of an employee’s employment. However, an increased workload alone is generally not sufficient to support a claim of workplace discrimination under Title VII, the ADA, or the ADEA. Moreover, if the employer can demonstrate a legitimate, non-discriminatory reason for the increased workload, such as business necessity or changes in job duties, it may not be considered an adverse employment action.
In Shivers, the Sixth Circuit held on this point:
Neither does Shivers’s workload constitute an adverse employment action. Shivers acknowledges that part of her mounting workload resulted from an across-the-board increase in the required number of resolved tickets and a decrease in the time allowed for resolving those tickets. … Finally, when Shivers requested to be put on a special project, she was put on the mail team—which she acknowledges reduced her workload.
Id. at * 6.
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Can the denial of vacation time be the basis for an employment discrimination claim?
Possibly. The denial of vacation time might be considered an adverse employment action if it is significant enough to alter the terms or conditions of an employee’s employment. Denial of vacation time may result in lost wages, inability to rest or take time off, or other negative consequences, which can affect the employee’s job satisfaction and well-being. However, in order to establish a claim of discrimination under Title VII of the Civil Rights Act of 1964 based on the denial of vacation time, an employee must also show that the denial was motivated by discriminatory intent based on a protected characteristic such as race, color, religion, sex, or national origin. Moreover, if the employer can demonstrate a legitimate, non-discriminatory reason for denying the vacation time, such as business necessity or scheduling conflicts, it may not be considered an adverse employment action under Title VII.
The United States Court of Appeals for the Sixth Circuit blocked Shivers on this argument as well:
Shivers argues that she was disproportionately denied her preferred vacation requests every time she requested them, including for major holidays. But the record reveals that this was also not an adverse employment action. Bliss approved many days off for Shivers, including around major holidays. It also appears that Bliss’s stated reasons for denying some of Shivers’s requests aligned with the stated policies regarding vacation leave. See Smith v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000) (“[I]t is inappropriate for the judiciary to substitute its judgment for that of management.”). Here, some denials of vacation requests according to Charter’s policy, without more, is not an adverse employment decision. See Johnson v. United Parcel Service, Inc., 117 F. App’x 444, 450 (6th Cir. 2004) (scheduling issues not adverse actions); White v. Andy Frain Servs., 629 F. App’x 131, 134 (2d Cir. 2015) (denial of vacation requests not adverse employment action).
Id. at * 6.
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Why should I contact an experienced employment law firm to figure out if I have a claim for discrimination?
Contacting an experienced employment law firm is important to determine if you have a claim for discrimination because they have knowledge of the law, can assess your case, guide you through the legal process, protect your rights, and help you pursue maximum compensation. If you think you are being discriminated on your job because you are Black or a woman, or because of your religion, age, disability, or LGBTQ+ status, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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