Does a plaintiff alleging a claim of discriminatory discipline in violation of Title VII need to allege and prove the existence of an adverse employment action? This is a recurring question within the Fourth Circuit that the district courts and court of appeals have failed to resolve in a definitive manner. Indeed, the Fourth Circuit Court of Appeals has been inconsistent as to whether an adverse employment action is an essential element of a Title VII claim based on discriminatory discipline. On one occasion, the Fourth Circuit Court of Appeals held that a discriminatory discipline claim does not require proof of an adverse employment action; on another occasion, it held that regardless of how a Title VII claim is to be proved, the existence of some adverse employment action is required.
The issue arose most recently in Koenig v. McHugh, where two employees, one Caucasian and the other African-American, engaged in a workplace dispute over a coffee cup left in the office sink. As a result of that dispute, the employer issued a letter of counseling to the Caucasian employee. The Caucasian employee filed suit claiming that the employer’s decision to discipline her, but not to discipline the African-American employee whose misconduct was allegedly worse, was based on unlawful discrimination. While the employer claimed that the letter was not significant because it was not placed in the employee’s official personnel file, the employee maintained that the letter set the stage for more serious disciplinary action in the future. The employer argued that the letter of counseling did not rise to the level of an adverse employment action for the purposes of Title VII, and that the employee’s claim must therefore be dismissed.
Instead of addressing the most critical issue (i.e., whether or not proof of an adverse employment action is required in discriminatory discipline cases), the court held that even if an adverse employment action is required, the letter of counseling might be sufficient to constitute an adverse employment action. At the same time, the court left open the possibility that the letter of counseling might not constitute an adverse employment action and that, in any event, an adverse employment action might not even be necessary. In short, the court ruled that a definitive decision on whether an adverse action was required would have to wait until a later stage of the case, but that the claim could proceed through litigation in the meantime.
Reading the tea leaves, it appears likely that courts in the Fourth Circuit will eventually reach the conclusion that an adverse employment action is not required to prove a case of discriminatory discipline under Title VII. However, since the issue has not yet been squarely decided, it may be some time before employers and employees are given further guidance on this topic.