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Shift Change Based on Race Constituted Unlawful Discrimination

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In Threat v. City of Cleveland, Ohio, Case No. 20-4165 (July 26, 2021), the Sixth Circuit U.S. Court of Appeals, whose jurisdiction includes Tennessee, ruled that discriminatory shift changes based on race violate Title VII of the Civil Rights Act of 1964. A seniority-based bidding process under a City of Cleveland collective bargaining agreement generated a schedule in which three black Emergency Medical Services captains would be the only captains on the day shift. The collective bargaining agreement allowed the city’s EMS Commissioner to transfer up to four captains to a different shift, even if it conflicted with the captains’ first choice. Exercising this power, the Commissioner removed one black captain from the day shift and replaced him with a white captain to “diversify the shift.” After the black captains complained and filed a discrimination charge with the EEOC, informal discussions led to the captains rebidding their shift preferences, but the result was a schedule under which day shift would again be staffed only by black captains. The Commissioner then reassigned one of the black captains to a night shift to “create diversity”.

The black captains sued the city and commissioner in federal court under Title VII for unlawful race discrimination. The district court granted summary judgment to the defendants. The Sixth Circuit reversed the decision. The issue was whether discriminatory shift changes based on race violate Title VII. The court of appeals held that they do.

Title VII makes it unlawful to discriminate against any individual with respect to compensation, terms, conditions of employment, or privileges of employment, because of race, color, religion, sex, or national origin. It was obvious that the defendants discriminated against the plaintiffs because of their race by making shift assignments based on race. The questions were whether the city’s shift schedules were “terms” of employment under Title VII, and whether getting priority because of seniority amounts to a “privilege” of employment under the statute. The Court’s answer to both questions was yes: the “when” of employment is a “term” of employment, and benefits that come with seniority are “privileges” of employment. Accordingly, moving an employee from day to night shift because of race over the employee’s seniority-based objection constituted unlawful discrimination.

Practice Tips: 

The shift changes in the Threat case caused no economic harm to the plaintiffs.  The Court’s decision illustrates that economic damage is not required for a discriminatory unlawful adverse employment action to occur.

Threat also demonstrates that the fact that a collective bargaining agreement permits an employer to take an action does not trump liability where the result is discrimination based on a prohibited factor such as race.

If you’re an employer in Tennessee or elsewhere faced with a discrimination claim, or with a decision that could potentially have a discriminatory result, obtain professional and thorough legal assistance by contacting the Law Offices of Cary Schwimmer at 901-753-5537 or visiting our website at schwimmerfirm.com. Our office address is 1661 International Place Drive, Suite 400, Memphis, TN 38120.

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