Monetary damages without proving damage?
You don’t have to go to law school to know that a plaintiff must prove the elements of her case before she prevails. But the Sixth Circuit has turned that basic legal premise on its head. In Litton v. Talawanda, the Sixth Circuit affirmed a lower court’s ruling where a plaintiff received compensation for a Title VII discrimination claim even though he did not prove a key element of his case.
Talawanda School District transferred Clifford Litton from his high school custodian job to a middle school custodian position. Litton had the same pay, work hours, and responsibilities at the middle school. Yet Litton felt that the transfer was a demotion. The school district refused to let him transfer back to his old job. He also applied for and failed to receive an open groundskeeper position at the high school. Litton sued the school district for discrimination under Title VII.
Here’s the rub: in order to establish a Title VII claim, a plaintiff must prove a number of key elements. One of those requirements is that the individual suffered an “adverse employment action.” In other words, Litton must show that the school district discriminated against him in a manner “adverse” to his employment. In Talawanda, the jury found that Litton’s transfer to the middle school with the same pay and responsibilities was not an “adverse employment action.” Nevertheless, the jury still said he should be entitled to receive $50,000 in damages, because race was a motivating factor in the school’s transfer decision.
While the Sixth Circuit affirmed this result, the dissenting judge rightly noted that Title VII only bans adverse discrimination. The dissent explains that the majority was wrong to separate the question of adverse discrimination from the ultimate question of discrimination vel non.
Anyone familiar with PLF’s work knows that we fight against race-based government action of any kind. But, with that in mind, Title VII is not the proper vehicle for stopping governmental classifications that do not result in an adverse employment action. As with any legal claim, Title VII Plaintiffs should have to prove the elements of a disparate treatment claim before collecting damages. It would be just as wrong for a court to award money to a plaintiff in a negligence case where the the plaintiff failed to prove proximate cause.
Other legal avenues are available to prevent race-based decisions that do not adversely affect the job position of a plaintiff. The school district’s actions here – if truly race-based– would violate the equal protection rights of Mr. Litton, and perhaps he would have a claim under Section 1983. Section 1983 permits recovery for governmental actions that violate constitutionally protected rights. Fortunately, the Sixth Circuit did not recommend its Talawanda decision for publication– limiting its precedential value. Hopefully the majority’s line of thinking remains limited and does not mark the beginning of a trend to come.