Being denied coverage to use the bathroom (and a bunch of other stuff that isn’t discrimination)


When employees allege discrimination, they must prove an employer’s discriminatory motive and connect it to a particular adverse employment decision. An adverse action requires evidence of a significant change in employment status, benefits, or pay. Usually, the proof comes in the form of failure to hire, a firing, failure to promote, reassignment with significantly different responsibilities, or lost pay or benefits.

But, from a federal court decision I read last night, I’ve got a list of eight items that are not adverse enough on which to base a disparate treatment claim.

To support her claim for an adverse action, the plaintiff argued the following actions were sufficient:

  1. Not being allowed to sit, drink, or have her phone like her white, male co-workers;
  2. being refused a transfer out of the area where she was being harassed;
  3. being denied coverage to use the bathroom;
  4. being moved from the day shift to the afternoon shift where her abusers would surround her;
  5. being given worse jobs than employees with less seniority;
  6. being sent to medical for drug testing after she was lied about by the defendant’s managers;
  7. being harassed daily; and finally
  8. having her financial well-being jeopardized by being denied overtime, not being paid unemployment when she was laid off, and being removed from work subject to mental health clearance.

A Michigan federal court disagreed, concluding that none were significant but “merely workplace disputes, which would not be considered an adverse action for purposes of [state or federal antidiscrimination law].” Indeed, none resulted in demotion or loss of pay or benefits.

Contrast the list of eight with the two instances in which the plaintiff did argue that the defendant deprived her of overtime opportunities. If true, those would have resulted in the loss of pay. Thus, the court would have considered them adverse employment actions. However, the evidence showed that the plaintiff was not entitled to overtime because she “admitted she did not adhere to the required process to work overtime.” On the other occasion, she refused overtime that defendant offered to her.

I don’t condone subjecting anyone to anything in that list of eight. One or more might support a hostile work environment or retaliation claim if the employee complained earlier.

But, at least in Michigan, add them to the list of items that won’t be enough to prevail on a disparate treatment claim of discrimination.

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