Title VII – cert petition on "ultimate employment decisions"

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Sometimes a US Supreme Court cert petition catches my eye. Today it was Peterson v. Linear Controls [briefs]

Formally, the question presented 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The 5th Circuit, in an unpublished opinion, reiterated its stingy interpretation of Title VII's anti-discrimination language. In this race discrimination lawsuit, the court said it "strictly construes adverse employment actions to include only 'ultimate employment decisions,' such as 'hiring, granting leave, discharging, promoting, or compensating. '” Peterson v. Linear Controls (5th Cir 02/06/2019) [PDF]

Peterson alleged that he was on a team of five white employees and five black employees, and the black employees had to work outside and were not permitted water breaks, while the white employees worked inside with air conditioning and were given water breaks. The 5th Circuit ruled that – assuming the allegations are true – it was not error for the trial court to hold that these working conditions are not adverse employment actions because they do not concern ultimate employment decisions.

Of course, the 5th Circuit is wrong, but that's usually not enough to rally the four Justices needed to grant certiorari. The fact that there is a split of authority among the circuits will be a major factor in deciding whether to grant certiorari. The 3rd Circuit is almost as strict as the 5th (some say it's just as strict). Seven other Circuits reject the 5th Circuit's restrictive approach – the 2nd, 6th, 7th, 8th, 9th, 10th, and 11th Circuits.

The key statutory language:

“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.

The brief from Linear Controls isn't due until September 9, so we have a bit of a wait before we know whether the Supreme Court will take up this case.