When applying New Jersey employment laws dealing with discrimination, courts have long held that plaintiffs must prove that they suffered actual harm. This might involve the loss of a job, lower wages, or the loss of other benefits or features of employment. Many courts around the country have applied similar interpretations to laws like Title VII of the Civil Rights Act of 1964. A case pending before the U.S. Supreme Court could change how courts in New Jersey and nationwide interpret these laws. A police sergeant alleges that her employer discriminated against her based on sex by transferring her to a different position. The lower courts found that she had not established that an “adverse employment action” had occurred. A ruling in her favor could help plaintiffs prove unlawful discrimination in cases where the discrimination did not cause them to suffer major disadvantages.
Title VII prohibits discrimination based on several categories, including sex. Section 703(a)(1) of the statute addresses unlawful practices by employers. While it identifies several specific adverse actions, such as firing someone or refusing to hire them, it also includes a catch-all category that simply states employers may not “otherwise…discriminate” against employees or job applicants because of sex or other protected categories.
The plain language of § 703(a)(1) does not necessarily require proof that a discriminatory act had a negative impact. This might affect the amount of damages a plaintiff could receive, but under this view, it would not affect whether or not they could assert a claim. Most courts, however, have taken the view that some employment discrimination claims require proof that a plaintiff suffered tangible harm.
This issue mainly arises in cases where a plaintiff cannot provide direct evidence of discrimination, such as overt statements that show discriminatory intent. In this type of situation, courts apply the “McDonnell Douglas burden-shifting framework,” named for a 1973 Supreme Court decision. If a plaintiff can establish a prima facie case of discrimination, the burden of proof shifts to the defendant to show a non-discriminatory reason for its action.
The list of elements that a plaintiff must prove under McDonnell Douglas has evolved over the years, but it generally includes evidence that they suffered some sort of disadvantage. In New Jersey employment discrimination claims, the Third Circuit Court of Appeals has held that this means a plaintiff must show that the employer’s action was “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.”
The plaintiff in the pending Supreme Court case alleged that her employer, a major metropolitan police department, discriminated against her on the basis of sex by transferring her to a different division and denying her request for a transfer back to her old job. She kept her same rank and rate of pay after the transfer, although she alleged disadvantages like changes to her schedule and the inability to wear plain clothes in her new position.
The district court granted summary judgment for the defendant, finding that the plaintiff had failed to allege an “adverse employment action.” The Eighth Circuit affirmed the ruling. Since some circuit courts of appeal have ruled that proof of an adverse action is not necessary, the Supreme Court granted certiorari. It heard oral arguments in December 2023.
The Resnick Law Group’s team of knowledgeable and skilled employment lawyers advocates for the rights of workers in New Jersey and New York in claims for discrimination and other unlawful employment practices. Please contact us at 973-781-1204, at 646-867-7997, or online today to schedule a confidential consultation to see how we can help you.