Jeffrey Englander and Keith Markel Quoted in SHRM on Fifth Circuit’s New Ruling to Broaden Meaning of Adverse Employment Action

Partners Jeffrey Englander and Keith Markel were quoted in the SHRM article “Court Broadens Meaning of Adverse Employment Action. The article examines a new ruling from the Fifth U.S. Circuit Court of Appeals that federal anti-discrimination laws can now apply to scheduling and other employment-related decisions that are not ultimate employment actions.

As the article states, “Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against any individual with respect to their compensation, terms, conditions or privileges of employment because of their race, color, religion, sex or national origin. Before this ruling, workers alleging discrimination had to show they suffered as a result of an ultimate employment decision, such as refusal to hire, termination, suspension or demotion with reduced pay.”

The new ruling allows for claims to be based on any decision affecting terms, conditions or privileges of employment, including work schedules, remote work, lunch breaks, office selection and more. Employees would have to show that the unfavorable schedule had a disparate impact on a protected group and there was a tangible harm associated with it, such as missing out on overtime pay, a bonus or premium pay periods.

"I think every practitioner under the sun is amazed at this result—a most surprising left turn for this court," said Jeff Englander, who co-chairs the Labor & Employment Practice.

Keith Markel, who co-chairs the Labor & Employment Practice further said HR should “continue to focus on the legitimate business rationales for making employment decisions, regardless of how employees may construe or twist them, so long as those decisions are based on nondiscriminatory reasons. HR professionals should continue to make sure that any decisions and the underlying reasons for those decisions are well documented."

Read the SHRM article here.