Keith Markel Discusses Fifth Circuit Ruling to Expand Scope of Actionable Discrimination Claims Under Title VII

Partner Keith Markel was quoted in Bloomberg Law and Law360 regarding the U.S. Court of Appeals for the Fifth Circuit’s ruling last week to wipe out a longstanding employer-friendly legal test for evaluating whether claims under Title VII of the Civil Rights Act are actionable. The test, which had blocked litigants from moving forward with employment discrimination suits unless they sustained an “ultimate employment decision” related to hiring, firing, leave, promotions or compensation, now creates an easier path for workers to pursue bias allegations.  

Keith, who co-chairs Morrison Cohen’s Labor & Employment Practice, told Bloomberg Law that the recent ruling will create “a lot more litigation” and said you can “Add this to the list of post-pandemic complaints employees will file to stave off termination or claim retaliation…  It’s becoming harder and harder for employers to manage their workforce because almost any business decision can be construed as adverse if an employee doesn’t agree with it.”

Keith told Law360 that he is hopeful that a pending U.S. Supreme Court case, which could set a nationwide standard for how the anti-discrimination statute is applied, will not be influenced by the Fifth Circuit’s decision. “If anything, I believe the court will make it clear that unless there is an objectively adverse employment decision (in other words, some tangible harm), there is no Title VII violation as a matter of law,” he said.

Read the Bloomberg Law article here.

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