The “Something” Standard

The “Something” Standard

Historically, if an employee wanted to sue their employer under Title VII, the employee needed to show that something happened to them because of their race, color, religion, etc. But it wasn’t enough to just show something happened to them, the plaintiff needed to show it was a “materially significant” something. And often times whether the something is materially significant enough would be litigated over, with certain somethings being obviously material, and other somethings being obviously immaterial.

(This is, of course, strictly speaking about Title VII – the question of materiality was scrapped long ago in certain states and cities – and yes, you know exactly which ones I’m talking about – where you could sue an employer for blinking at you the wrong way, allegedly).

Of course, you’d occasionally have plaintiffs’ lawyers people arguing that we should do away with this “materiality” standard and that any something is good enough. And the courts would be like, “settle down, Sparky, what do you think this is, California?”

But that was then. In 2024, the Supreme Court issued its decision in Muldrow v. City of St. Louis, where the Court basically said the text of Title VII doesn’t actually say the something a plaintiff experiences has to be materially significant. They essentially hand-waved the heightened standard away, greatly expanding the list of “somethings” that are now fair game.

This, of course, led to lawsuits. Lots and lots of lawsuits. Lawsuits as far as the eye could see, including all of these “reverse racism” cases, such as this one:

EEOC Sues Coca-Cola for Excluding Male Employees from Event

And this one:

Supreme Court Invalidates “Background Circumstances” Rule and Allows Heterosexual Woman’s Lawsuit to Proceed

And EEOC Chair Andrea Lucas posting a straight-to-camera video on social media asking, “Are you a white male who has experienced discrimination at work based on your race or sex?”

So, does Muldrow mean every “something” is now a possible lawsuit? We know from Muldrow that a lateral department transfer and schedule change is enough – even if title and pay remain the same. But is that the floor? Let’s say you’re a company and you hire an IT worker and the IT worker is not meeting expectations. This IT worker also happens to be 55 years old. You tell this IT worker that he’s failing to meet expectations and if that continues, he’s going to be fired and replaced with someone who can. By some miracle, this employee actually improves, completes the PIP, and stays on the job for another ten months before resigning on their own terms. Could that IT worker claim the PIP was enough of a something to use as the basis for an age discrimination claim?

First Circuit Rejects Rule that PIPs Automatically Qualify as Adverse Actions

Is this a win for employers and a clear(er) line in the sand as to what qualifies as enough to sustain a discrimination lawsuit . . . maybe, but probably not. On the one hand, the employer technically won. The court found that because this specific PIP didn’t change the employee’s title, pay, or benefits, and because the employee eventually retired on their own terms, there wasn’t enough of a something to sustain the claim. On the other hand, this “win” happened at the summary judgment stage. For the non-lawyers (bless you), that means the company didn’t win on a motion to dismiss. They had to go through the entire, grueling discovery process. They had to turn over thousands of emails, produce executives for depositions, and pay their outside counsel a loooooooot defensible amount of money – all just to prove that their performance review didn’t hurt the plaintiff’s “terms and conditions” of employment.

“Holy” Accomodations

And speaking of making it easier to sue people, this is a big time of year for the religions . . . and a perfect reminder of the Supreme Court’s 2023 decision of Groff v. DeJoy.

Before Groff, employers could deny a religious accommodation if it caused more than a “de minimis” cost. Groff took that standard and replaced it with a requirement to show “substantial increased costs in relation to the conduct of its particular business.”

Since Groff, we’ve seen courts shoot down arguments such as “generalized difficulty” to deny a four-day workweek for a Lunar Sabbath observer, and they’ve been equally unimpressed by employers citing vague safety concerns to keep employees from wearing religious beards or headwear (unless you can prove – with actual data – that the beard literally prevents a gas mask from sealing – as a fire department successfully did in the Third Circuit recently – you’re likely losing that argument). And oh yeah, the EEOC has also been ramping up their claims, filing more religious discrimination suits last year than they have in a decade.

If you find yourself saying a silent prayer this weekend for some mercy from this recent regulatory wave, no one will fault you – at least we won’t. But since “hope” isn’t an officially recognized legal defense, you should probably just give us a call instead.

Have a great weekend everyone and happy holidays to all who are observing. As always, if you’ve got questions, you know we’ve got answers (except if you have questions about what to do with the snow, then you’re on your own).

~ The W + K Team