Failure to investigate in-house discrimination claim is not "adverse employment action" under Title VII

The Court of Appeals holds that management's failure to investigate the plaintiff's in-house racial discrimination complaint is not an "adverse employment action" under the civil rights laws.

The case is Fincher v. Depository Trust, decided on May 14. For the uninitiated, you cannot win a discrimination case without an adverse action. This is a term of art that ensures that not every negative decision at work predicates a lawsuit. Here is the standard in retaliation cases:

The anti-retaliation law "protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). [A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We speak of material adversity because we believe it is important to separate significant from trivial harms.

Fincher told personnel that black workers did not receive the same training as white employees. Management did not investigate the complaint. Adopting the reasoning from district courts in our jurisdiction, the Court of Appeals holds, "at least in a run-of-the-mine case such as this one, an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint."

Here is how the Court of Appeals sees it: adverse employment actions typically involve affirmative efforts to punish the worker for engaging in protected activity. But in failing to investigate plaintiff's in-house discrimination complaint, she is no worse off than if she had not made the complaint at all, or if management had investigated the complaint and rejected it. "Put another way, an employee's knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge."

The Court does say that management's failure to investigate a complaint may constitute an adverse action in other contexts, i.e., the Court cites a case from the D.C. Circuit Court of Appeals where the employer did not investigate a death threat against the employee in retaliation for the employee's prior, unrelated complaint of discrimination. What distinguishes that case from this case is that the failure to investigate in the D.C. case was once removed from the plaintiff's discrimination complaint. Here is how Judge Sack makes the distinction:

in Rochon v. Gonzalez, 438 F.3d 1211 (D.C. Cir. 2006), the refusal to respond to the employee's complaint of a death threat was allegedly in retaliation for his separate and earlier complaint of discrimination. The employee contended that if he had never complained of discrimination, his complaint of a death threat against him would have been investigated. Making the initial complaint allegedly resulted in the separate retaliatory failure to investigate a subsequent complaint.

Title VII practitioners know that nearly all employment discrimination law is judge-made. The judges have to balance their view of Title VII with the consequences of a contrary interpretation. Judge Sack suggests that an opposite result might encourage mediocre employees to lodge frivolous discrimination complaints and then pursue litigation when management does not investigate.