Supreme Court asks Biden Administration to Weigh in on “Adverse Employment Action” Doctrine in Title VII Cases

The U.S. Supreme Court on Monday asked the Biden administration to weigh in on whether a paid suspension or a transfer can form the basis of a claim under the federal law banning workplace discrimination.

The justices invited the U.S. Solicitor General to file briefs in separate cases involving a Black ex-congressman who claims a legal aid service that he headed suspended him in order to force him out, and a St. Louis police officer who says she was transferred to an undesirable post because of her sex.

In both cases, U.S. appeals courts ruled that the alleged unlawful conduct did not amount to an "adverse employment action" that can trigger legal claims under Title VII of the Civil Rights Act of 1964.

Those courts said that in order to state a claim under Title VII, workers must show that they suffered a material harm or significant change in their employment status.

Asking for the Solicitor General's input signals that the justices may be interested in taking up the cases.

The Solicitor General's office is likely to back the workers if it files briefs to the Supreme Court. In a 2020 brief in the St. Louis case, the U.S. Department of Justice urged the 8th U.S. Circuit Court of Appeals to hold that Title VII broadly outlaws any discriminatory conduct.

The police officer says she was transferred out of an intelligence unit by a new supervisor to make way for a male officer. The department says officers are routinely transferred, and the plaintiff's supervisor transferred more than 20 officers when he took control of the unit.

In the other case, former U.S. Rep. Artur Davis says Legal Services Alabama in 2017 suspended him with pay pending an investigation into complaints about his treatment of employees, and forced him to quit because of his race.

Davis is a Democrat who represented an Alabama district in Congress from 2003 to 2011. Legal Services Alabama says Davis improperly hired workers, spent money and made other changes without approval from the group's board of directors.

The 11th Circuit in a 2021 ruling said a paid suspension is not an adverse employment action under Title VII because it does not affect a worker's continued employment or pay. At least eight other appeals courts have come to the same conclusion.