Emory Law Journal, Vol. 47, No. 4 (Fall 1998), pp. 1121-1191


Is there any basis for a de minimis exception to our employment discrimination laws? This Article suggests a way of analyzing the issue of de minimis discrimination that comports with the language of and policies underlying Title VII and also with judicially developed disparate treatment theory. It approaches this project from a normative and doctrinal, not a deontological, perspective. Congress has enacted laws prohibiting discrimination in employment, and the appropriate question, in the first instance, is how those statutes should best be interpreted. Although the focus is on Title VII, the analysis undertaken here may be usefully applied to other employment discrimination statutes as well.

Part I outlines the statutory language that forms the basis for this discussion. Part II examines the circuit court decisions that have imported requirements of ultimate employment decisions and/or materially adverse employment actions into employment discrimination statutes, explaining the similarities and differences in reasoning among those courts, as well as the reasoning of courts rejecting such requirements. Part III then analyzes the statute's language and its prior construction by the Supreme Court to determine whether these requirements may properly be considered part of the statutory scheme. Particular attention is paid to the Supreme Court's sexual harassment cases, including the recent decision in Burlington Industries, Inc. v. Ellerth and its discussion of what constitutes a “tangible employment action.” As a result of this analysis, this Article concludes that limitation of Title VII to ultimate employment decisions or to materially adverse employment actions is inconsistent with the statute, as written and as construed by the Court. What Title VII prohibits are employment actions, attributable to the employer directly or vicariously, that are based on a worker's race, sex, or complaint of discrimination, even when those decisions may be characterized as de minimis. This is true, moreover, whether or not the discrimination is considered “benign.”

Part IV, however, goes on to distinguish statutorily prohibited discrimination from the manner of proving that such discrimination in fact occurred. Although Title VII prohibits disparate treatment by employers that is neither ultimate, material, nor even adverse, courts may appropriately insist that an adverse employment action be present in deciding whether an inference of unlawful motive may be drawn in a circumstantial evidence case. Part V then applies this important distinction to a series of examples involving both discrimination and retaliation cases. This application illustrates that the suggested analysis is analytically correct and demonstrates how the statute should be interpreted and applied in concrete situations. Determining the outer limits of Title VII's scope is an important endeavor at any time but assumes particular emphasis now, in the face of a growing body of case law limiting the statute's reach. Understanding the role a requirement of adversity properly plays in the statute's interpretation and application is a critical step in ensuring the statute achieves its stated purposes.