Heads up, employers. It’s a lot easier for employees to claim discrimination — even without getting fired.


Earlier this year, the Supreme Court ruled that an employee claiming discrimination under Title VII of the Civil Rights Act of 1964 need only show that their employer treated them worse than someone else because of a protected characteristic such as race, gender, or national origin.

Last week, a federal appellate court hinted at some examples of when a plaintiff suffered “some harm” to a term or condition of employment, which would be enough to have a facially plausible claim of discrimination.

The plaintiff worked for the state as an Alcohol and Other Drugs agent. This physical job involved running to catch escaping offenders, restraining offenders during arrests, and moving offenders to take them into custody.

After her employment began, the plaintiff was diagnosed with multiple sclerosis. About four months later, she learned she was pregnant and asked for a light-duty accommodation. Initially, the defendant denied the accommodation request, telling the plaintiff that light duty is only for employees with work-related injuries. However, the defendant eventually approved the plaintiff’s accommodation request months later, consistent with her physician’s advice.

The plaintiff, who later resigned and also claimed constructive discharge, claimed that she suffered an adverse employment action because she was pregnant.

The trial court granted summary judgment to the defendant on the constructive discharge claim. So, what other adverse employment action could the plaintiff have suffered? She argued that the defendant forced her to take FMLA leave (with a corresponding temporary loss of pay and benefits), which caused her “uncertainty” and resulted in the revocation of state-issued equipment that flowed from it, a less flexible work schedule, and an unsafe work environment during her modified-duty assignment.

The trial court, relying upon binding precedent (at the time), concluded that the plaintiff’s allegations did not reflect a “significant” employment-related harm.

But then the Supreme Court ruled and rejected that the harm a plaintiff suffers must be “serious,” “significant,” “substantial,” or “any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Instead, just “some harm” would suffice.

So, when the plaintiff’s case reached the Third Circuit Court of Appeals, the appellate court applied the Supreme Court’s guidance. It remanded the case to the trial court to consider whether the plaintiff could establish “some” employment-related harm for her discrimination claim.

That the Third Circuit didn’t outright give the back of the hand to “uncertainty,” revocation of work equipment, and the other harms that the plaintiff claims to have suffered suggests that, individually or collectively, she endured “some harm” and suffered an adverse employment action.

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