DEFENDING FLORIDA EMPLOYERS: TITLE VII AND ADVERSE EMPLOYMENT ACTION

Many employers attempt to comply with Title VII of the Civil Rights Act of 1964 (Title VII) and treat all employees equally based on their protected statuses. Title VII prohibits employers from discriminating against employees based on race, color, sex, religion, and national origin. Notwithstanding, employers sometimes have to contend with unmeritorious Title VII lawsuits filed by unscrupulous employees or former employees. A common defense in these Title VII lawsuits is that the employee or former employee was not subjected to an adverse employment action. Employers commonly assert this defense because the employee or former employee is required to prove an adverse employment action to establish a prima facie discrimination case. In other words, the employee or former employee has the initial burden to prove he or she was subjected to an adverse employment before the employer is required the remaining parts of the employee’s or former employee’s claim. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

For many years, employees had to demonstrate adverse employment action by showing that an employer’s action created a “serious and material” change to the terms of employment. Davis v. Town of Lake Park, Fla., 245 F.3d 1232 (11th Cir. 2001). This standard helped employers defeat Title VII claims when employees brought claims involving unsubstantial adverse employment action. However, the Supreme Court’s recent decision in Muldrow v. City of St. Louis, Mo., 601 U.S. 346 (2024), changed the standard, which makes it more difficult for employers.

Muldrow involved a Title VII claim by a police officer who alleged her transfer to another division within the police department was sex-based discrimination. The officer worked in a plainclothes unit specializing in intelligence. She had FBI credentials, a take-home vehicle, and the authority to pursue investigations outside of the city. A new supervisor requested that the officer be transferred out of the intelligence division and was replaced by a male officer.

The female officer filed a Title VII lawsuit and the district court granted summary judgment against her because the female officer did not establish an adverse employment action. The officer did not show her transfer caused a significant change in working conditions producing a material employment disadvantage. The Eighth Circuit affirmed and then the case was heard by the United States the Supreme Court. The Supreme Court reversed summary judgment because the text of Title VII does not require an employee to show an employer’s action caused significant harm to an employee. In doing so, the Supreme Court established a new standard for adverse employment actions in Title VII cases. Employees are now only required to show “some harm respecting an identifiable term or condition of employment.” In other words, the employer’s actions must have “brought about some ‘disadvantageous’ change in an employment term or condition.”

The case law interpreting the new Muldrow standard is still developing. Therefore, Muldrow’s full impact is not yet known. Nevertheless, Muldrow has already been applied in decisions favoring employers and other decisions favoring employees. In West v. Butler County Board of Education, 2024 WL 2697987 (11th Cir. 2024), the Eleventh Circuit found that an employee who alleged an adverse employment action when his employer required him to use paid leave to observe a religious holiday had a plausible Title VII claim under Muldrow. Conversely, in Lukie v. Metlife Group, Inc., 2024 WL 4471109 (11th Cir. 2024), the Eleventh Circuit affirmed summary judgment for an employer because, among other reasons, the employee did not show her assignment to administrative tasks was an adverse employment action under Muldrow.

Going forward, employers should be cognizant that minor employment actions could possibly give rise to a Title VII claim if “some harm” to an employee occurred.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.