On October 15, 2019, the U.S. Supreme Court asked the U.S. Solicitor General of the Department of Justice (DOJ) to weigh in on a petition to revive the discrimination case of Peterson v. Linear Controls Inc.  David Peterson, a former offshore electrician at Linear Controls, petitioned for a writ of certiorari on May 7, 2019, asking the Supreme Court to overturn the Fifth Circuit’s holding that more difficult working conditions alone are not enough to be considered an “adverse employment action” under Title VII of the Civil Rights Act of 1964.  The petition is currently pending, with the most recent action being the Supreme Court’s invitation to the DOJ’s Solicitor General to file a brief in the case to express the views of the United States.  So what is the case about, and what might the implications be for employers? 

Under Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” with respect to “compensation, terms, conditions, or privileges of employment” because of the individual’s race, religion, sex, or other protected status.  In this case, Peterson alleged that Linear Controls discriminated against him based on race as demonstrated by, among other things, the inferior working conditions that he and other black employees experienced.

In particular, Peterson alleged that black employees were assigned to outdoor tasks in the heat without adequate water breaks, while Caucasian employees were assigned to indoor tasks with air conditioning.  In its February 6, 2019 decision, the Fifth Circuit stated its rule that it strictly construes adverse employment actions to include only “ultimate employment decisions,” such as “hiring, granting leave, discharging, promoting, or compensating.”  It concluded, fairly simply, that, even taking Peterson’s allegations to be true, the lower court did not err in holding that these working conditions are not adverse employment actions because they do not concern ultimate employment decisions.  Since there had been no ultimate employment decision such as hiring, granting leave, discharging, promoting, or compensating, the Fifth Circuit dismissed the Title VII claim.

On appeal, the question presented before the Supreme Court, should it grant certiorari, is whether the “terms, conditions, or privileges of employment” covered by Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 are limited only to hiring, firing, promotions, compensation and leave.  The case is significant because, while the Fifth Circuit, along with the Third Circuit, interpret the scope of Title VII in a narrow way, seven other circuits interpret it more broadly.  Accordingly, there is a circuit split, and guidance from the Supreme Court would be helpful.

So, what should employers expect?  As you know, the Supreme Court only grants certiorari for a limited number of cases.  Accordingly, it is unknown whether the Supreme Court will decide to hear this case, but given the circuit split, it might be inclined to do so.  Assuming the case is heard, given the makeup of Justices on the Supreme Court, there may be some disposition in favor of a narrower interpretation than Peterson will likely argue; however, that is yet to be determined.  In the meantime, we will keep you updated with any major developments in the case.