Title VII, the Adverse Action Requirement, and Ricci v. DeStefano
The reverse discrimination case Ricci v. DeStefano , in which the Supreme Court recently granted certiorari, is a strange case for the Court for a number of reasons. One oddity is the fact that the case involves a Title VII Civil Rights Act claim by plaintiffs who do not seem to have suffered an “adverse employment action,” and yet there is no hint anywhere, at least that I have seen, that this issue was raised. In the traditional discrimination context, courts have consistently required that a plaintiff have suffered an adverse employment action before he or she has an actionable claim under Title VII. Many courts define the requirement strictly, to require an “ultimate” employment action, like refusal to hire or to promote, and even those applying a somewhat broader definition require that the race- or sex-based decision have had a material effect to be actionable. The firefighters in Ricci had suffered no such material effect. Why no mention of this in the case? If courts are really going to apply an adverse employment action requirement to Title VII claims, the requirement should apply regardless of how obvious the racial motivation and certainly regardless the race of the plaintiffs.