Littler Lightbulb ' July Employment Appellate Roundup

• Published date: 11 August 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Retirement, Superannuation & Pensions, Arbitration & Dispute Resolution
• Law Firm: Littler Mendelson
• Author: Mr Mark Flores

This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

At the Supreme Court

• Court to Decide Whether Lateral Transfers Can Violate Title VII. The Supreme Court agreed to resolve a circuit split on the degree of harm required to show discrimination in employee transfers. In Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022) the plaintiff claimed that a transfer that altered her scheduling and responsibilities but did not change her title, salary, or benefits, constituted gender discrimination in her "terms, conditions, or privileges of employment" under Title VII. The Eighth Circuit disagreed, holding "[a] transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action." The DC and Sixth Circuits have reached different conclusions in similar cases holding that shift changes are generally actionable under Title VII, even when they are unaccompanied by reductions in pay or benefits. The case will be argued next term.

In the Federal Appellate Courts

• Company Recission of Job Offer to DACA Recipient Because of Temporary Work Authorization Not Alienage Discrimination. The plaintiff in Resendiz v. Exxon Mobil Corp., 72 F.4th 623 (4th Cir. 2023) was a DACA (Deferred Action for Childhood Arrivals) recipient who applied for and was offered an internship with a major corporation. DACA does not provide recipients with legal immigration status, but rather protects eligible people who were brought to the United States as children from deportation and provides them with work authorization for temporary periods. The plaintiff was eligible for and received temporary work authorization under the DACA regulations. In his internship application he stated that he was not a United States citizen, but erroneously represented that he had permanent work authorization under federal law. The company's policy provided for hiring regardless of citizenship status but required documentation of permanent work authorization. When the plaintiff submitted the required paperwork in response to the internship offer it showed that he lacked permanent work authorization. So consistent with its policy, the company rescinded its offer and the applicant filed suit claiming the company discriminated against him based on alienage in violation of 42 U.S.C. ' 1981.
  
  The district court dismissed the complaint finding the applicant failed to plausibly allege the company intentionally discriminated against him based on his alienage, and the applicant appealed. The appellate court began its analysis stating: "Though the Supreme Court has expanded '1981's protections and implied a private right of action, it has not yet held that it encompasses alienage-based discrimination. But the Fourth Circuit has squarely done so." However, to prove violation of '1981 in the Fourth Circuit, a plaintiff must establish that (1) the defendant intended to discriminate on the basis of alienage, (2) the discrimination interfered with a contractual interest, and (3) the interference with the contractual interest would not have happened but for the plaintiff's alienage. The applicant in this case the Fourth Circuit found, failed to plausibly allege intentional discrimination based on alienage because, among other things, the company extended him an offer knowing he was not a U.S. citizen Therefore, the court held, its policy clearly did not screen out applicants based on alienage...