Yogi Berra makes a valid point: “it’s tough to make predictions, especially about the future.” Yet anticipating what’s on the legal forefront engenders reflection, promotes thought, enhances advocacy. Here, then, are four employment law predictions for 2023 and beyond. The first is a certainty; the second is a given waiting for the right fact pattern; the third is an inevitable shocker. And the fourth? Stay tuned for the birthing of a new right.

Prediction No. 1: The Fifth Circuit Nukes Its Definition of Adverse Employment Action, Finally

To win a lawsuit, unlawful discrimination plaintiffs must establish that they suffered an (a) adverse employment action (b) because of (c) a protected classification. The Fifth Circuit’s current definition of (a) limits it to only Big Ticket items—termination, demotion, stripping of essential job functions—and therefore dooms otherwise viable claims to the circuit’s version of the Bermuda Triangle. Stated differently, even admitted discrimination is judicially sanctioned.

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