Unlawful discrimination in the nation’s public schools, and what that even is, have been red-hot topics this year. But with so much attention focused on the federal government’s challenges to diversity, equity and inclusion (DEI) and accommodation of transgender students, we should not lose sight of some recent employment discrimination decisions from the U.S. Supreme Court addressing Title VII of the Civil Rights Act of 1964. These changes may have flown under the radar but have important implications for New Jersey school districts.
The deluge of presidential executive orders and policy statements from the U.S. Department of Education since Jan. 20 have focused mainly on discrimination against students including race discrimination under Title VI of the Civil Rights Act of 1964, and sex discrimination under Title IX of the Education Amendments of 1972.
Both statutes are limited to recipients of federal funds. Title VII targets employment discrimination based on race, color, sex, religion and national origin. It is not tied to federal funding and covers private and government employers with 15 or more employees, which means virtually every public school district in New Jersey.
State Law Bars Discrimination New Jersey has its own anti-discrimination statute, the New Jersey Law Against Discrimination (NJLAD), which also prohibits employment discrimination by public and private employers.
In some respects, NJLAD has more teeth than Title VII because it protects many more categories of employees, and the New Jersey courts have historically adopted a less rigorous threshold of evidence to prove a case. There is one issue, though, where the courts’ interpretation of Title VII and NJLAD have been in sync.
Generally, a claim under either statute could not succeed without a significant “adverse employment action” such as a termination, demotion, failure to hire or promote, an unpaid suspension or some other substantial impact on terms and conditions of employment. Mere unhappiness with the employer’s action wasn’t enough.
The requirement of an adverse employment action served as a valuable protection for school districts because it allowed for good faith staffing decisions free from undue concern about baseless race or gender bias claims. But a 2024 U.S. Supreme Court decision has considerably weakened that protection. In Muldrow v. City of St. Louis, the court took up the case of Jatonya Muldrow, a sergeant with the St. Louis Police Department, who was transferred from a plainclothes assignment in the prestigious intelligence division to a uniformed job and replaced by a man. Her rank and pay remained the same, but she no longer worked with high-ranking officials on departmental priorities and instead was supervising neighborhood patrol officers. She also no longer had an unmarked take-home vehicle, and her weekly schedule was different.
Muldrow sued for sex discrimination under Title VII but lost in the lower courts because her transfer, though upsetting and inconvenient, did not have the hallmarks of an adverse employment action sufficient to satisfy that element of the claim. The Supreme Court disagreed. In a unanimous decision overruling decades of precedents in the lower federal courts, the court held that Title VII requires some adverse treatment to support a viable claim but not much, since nothing in the statute sets any threshold for how painful that treatment must be. The court remanded the case for reconsideration under the new standard but the parties later settled so we will never know for sure how Muldrow would have fared under the more lenient rule.
Reevaluating Staffing Decisions The Muldrow case has significant implications for school administrators. Until now, most routine staffing decisions were immune from discrimination claims, as a practical matter, because they did not involve an adverse employment action as the courts had construed that term. Now that the court has lowered the bar without clear guidance on how little negative impact is required, districts may have to think twice before proceeding with even the most mundane staffing moves.
Let’s say you are a school principal planning to reassign a female teacher from one classroom to a slightly smaller one down the hall due to a decrease in her class size and give a male teacher her old room. Her new location will not have quite as nice a view out the window, it is slightly further away from the faculty lavatory and she would have to walk a few more steps to her parking spot. Before Muldrow, there would have been little risk of a viable Title VII or NJLAD claim. Even if there were a stray remark or other isolated piece of evidence unfairly suggesting to a sympathetic jury that you were biased against women, there would be no adverse employment action under the more rigorous standard previously applied by the federal courts so her claim would not make it to first base. Now, those facts might well meet Muldrow’s lower threshold.
That does not necessarily mean the teacher has a viable claim and you should avoid relocating her. She still has to meet her burden of proving you had a discriminatory motive. But the high threshold of harm previously required to prove a case gave you the freedom to make these decisions with some piece of mind. That guardrail is now gone, and you need to factor the added risk into your decision making.
There have not been enough post-Muldrow cases in our jurisdiction to know just how low the bar now is, but one decision from our own federal appeals court is worth noting. Districts frequently place staff on paid administrative leave for various reasons, not as a disciplinary action per se but merely as a precaution while an investigation is underway. Until now, that would not have been considered an adverse employment action under Title VII or NJLAD, but the Third Circuit Court of Appeals, our own federal appeals court, recently observed that after Muldrow, it very well might be.
Another recent Title VII decision from the Supreme Court overruled long-settled law on employers’ denial of requests for religious accommodation. Under Title VII, employers must afford reasonable accommodation to employees’ religious practices unless doing so imposes an “undue hardship on the conduct of the employer’s business.”
Gerald Groff was a postal worker in rural Pennsylvania. He was an Evangelical Christian with religious objections to working Sundays, which made this an ideal job, at first. Problems arose when the U.S. Postal Service made a deal with Amazon to start delivering packages on Sundays. When Groff refused to help out, he was disciplined, eventually resigned and then sued under Title VII claiming a failure to accommodate his religious beliefs.
Existing federal court decisions set a low threshold of “undue hardship” to deny a religious accommodation request — anything more than a de minimis, legal term that means considered small, cost to the employer. As long as work rules were non- discriminatory on their face and uniformly applied, the fact that they incidentally burdened an employee’s religious practices did not violate Title VII. That was true for Groff’s claim, until it reached the Supreme Court.
In Groff v. DeJoy, another unanimous decision, the court rejected the de minimis standard, ruling that “undue hardship” requires substantial increased burdens in relation to the conduct of the employer’s business. As in Muldrow, the court painted with a broad brush, leaving to the lower courts the task of applying this heightened standard on a case-by-case basis.
Making Religious Accommodations The impact of Groff on school districts is already being seen in the lower federal courts, mostly in cases concerning religious objections to accommodating transgender students or to COVID-19 pandemic safety measure mandates. In a pre-Groff case from Indiana, a Christian music teacher raised a religious objection to calling transgender students by their preferred names and pronouns. The school district initially accommodated his request by allowing him to address all students by their last names, but changed its mind after receiving complaints that the practice was too stigmatizing. The teacher sued in federal court under Title VII and initially lost because the perceived stigma passed the “more than de minimis” hardship test. In the wake of Groff, the case was sent back to the trial court to reconsider whether the district could meet Groff’s more onerous hardship standard. That court found that the risk of violating transgender students’ accommodation rights under Indiana state law was a significant enough burden to justify the district’s earlier action, but the case is back up on appeal and may once again reach the high court.
A federal appeals court recently upheld a New York school district’s refusal to allow a school psychologist to work remotely because she had religious objections to the district’s COVID-19 vaccination and testing requirements. The court was satisfied that the district’s actions met Groff’s substantial burden test because granting the employee’s request would have violated state law and, also, her particular duties by their nature required her physical presence on campus and the district would have had to hire another staff member to perform much of her work.
A New York federal court reached a similar conclusion in a case involving a special education teacher – again, because her particular position required in-person interaction with students. A Connecticut federal court, on the other hand, found that under Groff, remote instruction might have been a reasonable religious accommodation for a second grade teacher, at least enough so as not to dismiss the teacher’s complaint at the early stages of the case before a full record could be made. It is clear that religious accommodation cases will now require a much more nuanced, fact-sensitive analysis than in the past.
One question Groff did not resolve is whether employers’ duty to accommodate is limited to religious obligations in the strict sense of the term, or extends to other activities that just have some religious energy around them, like leaving school early to prepare a Passover seder meal or taking a day off to attend a church retreat. There remains some legal fuzziness around where the boundary line is on that score, so districts should pick their battles wisely after consulting with legal counsel.
There are several take aways from Groff and the court decisions that have followed. Districts will need more compelling reasons for rejecting religious accommodation requests than in the past. A requested accommodation that requires districts to violate state law or poses a significant risk of legal exposure for infringing others’ legal rights will still likely be found unreasonable. And because the new substantial burden test requires such a fact-sensitive inquiry, many of these cases will be more expensive and protracted to litigate due to the need for a full evidentiary record before a court can decide the matter.
Discrimination in Hiring The Supreme Court decided yet another Title VII case this past June that was widely reported in the press as a significant change in the law as well, but was not at least not for us in New Jersey. In Ames v. Ohio Department of Youth Services, a heterosexual woman who worked as a program coordinator for a state agency interviewed for a new management position. The employer chose a lesbian woman instead, later demoted Ames and then hired a gay man to replace her.
Ames sued under Title VII, claiming discrimination based on her sexual orientation. She initially lost because the federal appeals court in her jurisdiction, along with several other appeals courts across the country, followed the so-called “unusual employer” rule, which places a higher burden of proof on non-minority plaintiffs in Title VII cases. The logic behind the rule is that most employers likely would not discriminate against non-minority employees, so they should have to present extra evidence to prove that theirs was the “unusual employer” who would.
The Third Circuit, our federal appeals court, has long rejected that rule, as have several other appeals courts. In yet another unanimous decision, the Supreme Court sided with those circuits, like ours, in holding that there is nothing in Title VII imposing a higher burden on some plaintiffs over others. Discrimination is discrimination. If it can be shown that the employer’s action was based on the employee’s membership in one of the protected categories, that is sufficient.
Whatever differences the Supreme Court Justices have on other matters, they have been consistently unanimous when it comes to expansive interpretations of Title VII over the past few years. Muldrow and Groff are game changers and districts would be well advised to factor these rulings into their risk assessments before moving forward with employment decisions that, in the past, were no-brainers.
Please note the print version of this article includes footnotes.
David B. Rubin is of counsel to the Busch Law Group.
