Title VII Discrimination: Getting Back to Basics

by Sarah T. Glaser

Title VII of the Civil Rights Act of 1964 protects employees from discrimination by their employer. For forty years, Fifth Circuit precedent required a plaintiff under Title VII to show he or she had been subjected to an “ultimate employment decision” to state a cognizable discrimination claim. In other words, the plaintiff must show they were fired, not hired, demoted, etc. and likely would not succeed on a discrimination claim based on a more minor concern, such as unequal treatment with respect to days off, facilities, or other benefits.

Section 2000e-2(a) prohibits discrimination by providing that it shall be an unlawful employment practice for an employer:

• to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
• to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”¹

To establish a prima facie case of Title VII discrimination, a plaintiff must show: (1) he/she is a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside [his/her] protected group or was treated less favorably than other similarly situated employees outside the protected group.²

Because the Texas Labor Code’s anti-discrimination provision³ has similar language as Title VII’s anti-discrimination provision, it is worth nothing that courts often analyze parallel claims together under the Title VII framework.⁴

Under Title VII’s discrimination provision, an “adverse employment action” is “discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment.’”⁵ For nearly thirty years, Fifth Circuit precedent required a plaintiff under Title VII to show he or she had been subjected to an “ultimate employment decision” to state a cognizable discrimination claim.⁶ In an August 2023 decision, the Fifth Circuit held that to limit disparate treatment claims to those involving ultimate employment decisions ignored the “terms, conditions, or privileges of employment” language of the provision, significantly expanding application of the statute.⁷ The Court did not address exactly what level of harm done by the employment action must be shown.⁸

Shortly after, in April 2024, the United States Supreme Court addressed a significant circuit split over the threshold of harm an employee must show resulted from the employment action, holding that the employee must show “some harm respecting an identifiable term or condition of employment,” which is less than “significant” harm (which was the Eighth Circuit’s prior standard).⁹

Thus, in the last year, Fifth Circuit precedent regarding what is an “adverse employment action” in Title VII discrimination cases turned on its head. Until this recent change, a plaintiff alleging discrimination must meet the high burden of establishing an “ultimate employment decision.” This is no longer the case.

Employment lawyers and courts alike have consistently argued that Title VII should not be used and transformed into “a general civility code for the American workplace,” and with the Muldrow decision requiring some showing of actual harm, this basic premise has not changed. Title VII continues to not permit liability for “de minimis workplace trifles.”

However, there’s no doubt that employers must look closer at the details of the employment relationship—the “terms, conditions, or privileges” and seek to remedy any disparate harm to a particular group of employees stemming from the same. Employers should review any workplace policies or practices which appear on their face or in practice to impact a particular class of people and see if changes can be made to reduce their disparate impact.

¹42 U.S.C. § 2000e-2(a).
²Traudt v. Data Recognition Corp., No. 23-10498, 2024 U.S. LEXIS 2165, at *4 (5th Cir. Jan. 31, 2024); Willis v. W. Power Sports, Inc., No. 23-10687, 2024 U.S. LEXIS 2737, at *3 (5th Cir. Feb. 6, 2024); Harper v. Lockheed Martin Corp., No. 22-10787, 2024 U.S.LEXIS 2159, at *3-4 (5th Cir. Jan. 31, 2024).
³In Texas, an employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or (2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. Tex. Labor Code § 21.051.
⁴Willis, 2024 U.S. LEXIS 2737, at *2.
⁵Harper, 2024 U.S.LEXIS 2159, at *4; Hamilton v. Dallas Cty., 79 F.4th 494, 497 (5th Cir. 2023) (en banc) (“Despite [Title VII’s] broad language, we have long limited the universe of actionable adverse employment actions to so-called ‘ultimate employment decisions.’ We end that interpretive incongruity today…. [W]e hold that a plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges’ of her employment. She need not also show an ‘ultimate employment decision,’ a phrase that appears nowhere in the statute and that thwarts legitimate claims of workplace bias.”); Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 90 F.4th 449, 461 (5th Cir. 2024).
⁶Hamilton, 79 F.4th at 501.
⁷Id.
⁸Id. at 505.
⁹Muldrow v. City of St. Louis, No. 22-193, 2024 U.S. LEXIS 1816, at *3 (Apr. 17, 2024).).

Sarah Glaser is the Chair of the Firm’s Employment Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.