A Supervisor’s Threat to Reduce Pay Could be Grounds for a Title VII Claim
Many courts have held that an employee cannot sue for employment discrimination unless they sustain an actual adverse employment action like a demotion, termination or reduction in pay. In Brandon v. Sage Corp., the Fifth Circuit (covering Louisiana) ruled that a co-worker’s threat to reduce the pay of a high-ranking employee is not an adverse employment action under Title VII. However, the court opened the door for employees who are merely threatened by supervisors even if the supervisor does not follow through with the threat.
In Brandon, the plaintiff (Brandon) was a director of a truck driving school operated by Sage Corp. Brandon hired a driver who was in the process of transitioning from female to male. Subsequently, Sage’s National Project Director affirmatively told Brandon that Sage does not hire “cross-gender people” and reduced the employee’s work hours. Brandon complained about the reduction in hours, and the National Project Director threatened to lower Brandon’s pay by 50% for hiring the transgender person.
Brandon sued under Title VII and claimed that the Project Director retaliated against her for protesting the improper discrimination.
The trial court dismissed Brandon’s case on the grounds that she could not establish that she suffered an adverse employment action. One thing a Title VII must prove is that she was subjected to an “adverse employment action.” To establish this element, Brandon needed to show that a the Project Director’s threat to reduce Brandon’s pay might have dissuaded a reasonable worker from opposing the Project Director’s comments and reduction in work hours for the transgender employee.
The trial court and the Fifth Circuit determined that a reasonable employee would not have been dissuaded by the threat because the National Project Director did not have the authority to reduce Brandon’s pay. However, the Fifth Circuit did state, “We do not reject the possibility that a realistic, drastic pay cut threat might deter someone from supporting a discrimination charge in certain circumstances . . . . “
So, the Fifth Circuit essentially ruled that, unlike some other jurisdictions in which a threat is never considered an adverse employment action under Title VII, a subordinate employee may maintain a retaliation claim based on a threat of an adverse employment action by a supervisor in some circumstances. As such, Louisiana employers must be careful as to how they train managers and supervisors to never threaten employees for participating in protected activity.
Click here for the Fifth Circuit Opinion.
