Title VII makes it unlawful for an employer to fail to hire or to discharge an individual or otherwise to discriminate against such individual “with respect to his compensation, terms, conditions, or privileges of employment” because of a protected characteristic, including race.

To establish a claim of discrimination under Title VII, an individual must first show that he or she was subject to an “adverse employment action” – which has been judicially defined as an action that affects the terms and conditions of employment, and which can include firing, failure to hire, demotion, an unequal compensation. 

The 5th U.S. Circuit Court of Appeals historically has been one of the most restrictive federal appellate courts in its definition of an “adverse employment action.” However, that court recently held that a city police department’s restriction of a detective’s responsibilities after his return from a disciplinary suspension was sufficient to fall within the definition of an “adverse employment action,” and to overcome the city’s motion to dismiss his lawsuit. Thompson v. City of Waco, 5th Circ., No. 13-50718, September 3, 2014. 

Allen Thompson is an African American detective in the Waco, Texas Police Department. Thompson and two Caucasian detectives were suspended after allegations that the three had falsified time sheets. After reinstating all three detectives, the City imposed restrictions on Thompson that it did not impose on the two non-minority detectives. The restrictions precluded Thompson from: searching for evidence without supervision or logging that evidence in after discovery; acting as the lead investigator on a matter, affiant in a criminal case, or evidence officer at a crime scene; and working in an undercover capacity.  

According to Thompson, his new responsibilities were “significantly different,” less prestigious, less interesting, and less likely to lead to promotion than his prior responsibilities. 

Thompson sued the City, and the City responded by moving to dismiss the suit, arguing that Thompson had failed to set forth the required “adverse employment action” necessary to support a Title VII discrimination claim. 

That decision was reversed by the Fifth Circuit, which found that while the mere “loss of some job responsibilities” does not automatically constitute an adverse employment action, that fact does not mean that a change or loss of some responsibilities can never establish an actionable discrimination claim.  

Thompson alleges that the Police Department rewrote and restricted his job description to the extent that he now functions as an assistant to the other detectives, rather than a true detective in his own right. Thompson claims to have lost essential job functions, and states he no longer uses his education and skills to act as a detective, and that such circumstances are materially adverse. Therefore, according to the court, the circumstances are materially adverse, and Thompson has stated a “plausible claim that he was subject to the equivalent of a demotion.” 

The court is quick to point out that it has “no view on Thompson’s likelihood of success” and that such determination is fact-intensive and is “better suited for summary judgment or trial stage.” However, Thompson’s claims, as stated, overcome the initial hurdle required by Title VII to set forth an “adverse employment action.”  

The lesson for employers is clear: if the terms and conditions of employment are changed to an extent that changes the basic nature of the job itself – even without a diminution in the salary or benefits associated with the job – such action may be sufficiently “adverse” to support a discrimination claim under Title VII.