Analytical Nightmare: The Materially Adverse Action Requirement in Disparate Treatment Cases

Title VII of the Civil Rights Act of 1964 expressly prohibits employment discrimination on the basis of an individual’s race, color, religion, sex, or national origin. Since its passage, however, federal courts have imported an adverse employment action requirement into Title VII jurisprudence despite its absence from the statutory language. Inconsistent determinations as to which employment actions qualify as sufficiently adverse under Title VII have resulted in an analytical confusion, yielding anemic anti-discrimination protections that, in effect, shelter invidious employment practices from liability. This Note argues that the anti-discrimination jurisprudence surrounding the adverse action requirement diametrically opposes both the letter and spirit of Title VII.

Without meaningful intervention to restore the aims of Title VII, this analytical confusion will remain a court-sanctioned barrier to equal employment opportunity in this country.