Recently, the United States Supreme Court invited the U.S. Solicitor General of the Department of Justice to weigh in on a petition to revive the discrimination case of Peterson v. Linear Controls Inc. David Peterson, a former Linear Controls electrician, asked the Supreme Court to overturn the Fifth Circuit decision that held more difficult working conditions alone were not enough to be covered as an “adverse employment action” under Title VII of the Civil Rights Act of 1964.

In this case, the former employee alleged race discrimination in regard to working conditions, not a discharge or other clearly adverse action. The suit alleges that Black employees were assigned to outdoor tasks in the heat without adequate water breaks, while Caucasian employees were assigned to indoor tasks. In February, the Fifth Circuit determined that an “ultimate employment decision,” which includes “hiring, granting leave, discharging, promoting or compensating,” was required to support a race bias claim under Title VII. Since none had occurred, the Fifth Circuit dismissed the Title VII claim. In doing so, the Fifth Circuit amplified a split among the Circuit Courts over the scope of Title VII, with the Third Circuit applying a similar precedent, but seven other Circuits interpreting more broadly the scope of Title VII. Where such a split exists, uncertainty results and Supreme Court guidance is needed.