Federal appeals courts are grappling with the question of what kinds of workplace disparities rise to the level of illegal discrimination, creating the potential for judges to broaden employee protections under federal anti-bias laws.
Last week, a federal appeals court heard oral argument in a female construction worker’s bid to revive her lawsuit accusing a company of unlawfully denying her the same work opportunities as men. A district judge threw out the case because that denial wasn’t an “ultimate employment decision.”
Another court is considering cases on the legal requirements for “adverse employment actions” when workers sue companies after not getting requested disability or religious accommodations.
What types of biased employer actions are necessary to bring a discrimination claim has been a frequently litigated issue. The result is a complicated, sometimes-inconsistent set of standards that vary by law and circuit.
But federal courts are turning more towards interpreting anti-bias laws according to their actual text—exemplified in the US Supreme Court’s landmark 2020 ruling that expanded job protections to LGBT workers. That shift could cause judges to rethink the judicial doctrine for adverse employment actions, legal scholars say.
“The doctrine is simply inconsistent with the statutory text,” said Katie Eyer, a discrimination law professor at Rutgers University who’s...
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