United States — Workplace Discrimination

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and transgender status), and national origin. The statute applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, as well as to labor organizations, employment agencies, and federal, state, and local government employers. Title VII is codified at 42 U.S.C. § 2000e et seq. and enforced by the Equal Employment Opportunity Commission (EEOC).

Source: Title VII of the Civil Rights Act of 1964, EEOC

The burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs the order and allocation of proof in Title VII disparate-treatment claims based on circumstantial evidence. This three-step process remains foundational for evaluating claims lacking direct evidence of discriminatory intent. The framework applies to Title VII claims and, by adaptation, to ADEA and ADA claims where direct proof of intent is absent, as supported by federal appellate courts (but not direct Supreme Court pronouncement).

Step One: Plaintiff's Prima Facie Case

The plaintiff must first establish a prima facie case of discrimination. For example, in a failure-to-hire claim, the elements are: (1) membership in a protected class; (2) qualification for the job; (3) rejection despite qualification; and (4) that the position remained open. The exact elements vary with the adverse action claimed. This first step intentionally sets a low bar, designed to rule out routine business reasons for the employer's action. The framework is not used when there is direct evidence of discriminatory intent.

Important Update: 'Some Harm' Standard for Job Transfers (Muldrow v. City of St. Louis, 2024, Title VII only)

In 2024, the U.S. Supreme Court clarified what qualifies as an actionable adverse employment action in the job transfer context under Title VII. In Muldrow v. City of St. Louis, Missouri, No. 22-193 (April 17, 2024), the Court rejected the requirement (from some circuits) that a plaintiff must show the transfer created a "materially significant disadvantage." The Court held that an employee need only show that the transfer caused "some harm" with respect to an identifiable term or condition of employment—no more substantial injury is required. The opinion gave examples: changes in schedule, shift prestige, altered work responsibilities, or other moves that "bring about some harm" to employment terms. This standard does not necessarily extend to other federal anti-discrimination statutes until/unless courts apply it there.

As a result, transfers that leave an employee "worse off" in an identifiable way can now qualify as adverse actions under Title VII, even without changes in pay or benefits. Practitioners must adjust their adverse-action analysis for job transfer claims to meet this new threshold. This resolves a prior split among circuits and is now controlling law for Title VII claims.

Step Two: Employer's Burden of Production

If the plaintiff meets the prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. The employer must produce admissible evidence supporting a nondiscriminatory basis (Burdine, 450 U.S. at 254-55). Upon this showing, the presumption of discrimination drops from the case.

Step Three: Plaintiff's Burden to Prove Pretext

The plaintiff may then attempt to show the stated reason was pretextual. As clarified in Burdine, pretext can be shown directly or indirectly—for example, that a discriminatory reason more likely motivated the employer, or that the proffered explanation is unworthy of credence. Lower courts regularly summarize possible routes to show pretext: (1) the stated reason has no basis in fact; (2) it did not actually motivate the action; or (3) it was insufficient to motivate the action. The plaintiff carries the ultimate burden of persuasion at all stages. Evidence from the prima facie case and any additional supporting material together may demonstrate pretext and intentional discrimination.

June 2026: OLC opinion and EEOC National Enforcement Plan—significant federal enforcement changes

In June 2026, the Department of Justice’s Office of Legal Counsel (OLC) issued an opinion asserting that disparate-impact liability under Title VII—as formulated in longstanding EEOC guidance—is unconstitutional where based solely on statistical disparities. The OLC states that employers should not face liability unless a challenged practice is irrational or arbitrary, causally linked to the disparate outcome, and lacking a less-discriminatory alternative. Separately, the EEOC’s National Enforcement Plan for 2025–2029, announced June 4, 2026, signals that the agency will shift enforcement focus away from disparate-impact and toward disparate-treatment (intentional discrimination) claims. While the OLC opinion is persuasive authority for federal agencies, it does not itself change binding legal standards for all employers. The NEP is a policy signal, not a legislative or regulatory rule, and does not eliminate disparate-impact liability, but indicates changed enforcement priorities.

Practitioners should monitor for future court decisions and additional EEOC guidance responsive to these developments.

Source: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) Source: Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) Source: St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) Source: Supreme Court slip opinion, Muldrow v. City of St. Louis, No. 22-193 (April 17, 2024) Source: OLC—Constitutionality of Disparate‑Impact Liability Under Title VII, June 9, 2026 Source: EEOC: National Enforcement Plan Fiscal Years 2025–2029, June 4, 2026