In Anderson, Keesha v. Amazon.com, Inc. et al, 23-cv-8347, 2024 WL 2801986 (S.D.N.Y. May 31, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claim of race discrimination asserted under 42 U.S.C. § 1981.
This decision discusses and applies the impact of the Supreme Court’s recent decision in Muldrow v. City of St. Louis when evaluating whether the challenged actions are “adverse employment actions” under section 1981.
From the decision:
Anderson points to the PIP and her diminished responsibilities as adverse employment actions. When this motion was filed, the law in this circuit was that “[a] plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (emphasis added) (citation omitted). But the landscape has changed with the Supreme Court’s decision in Muldrow v. City of St. Louis, 144 S. Ct. 967 (2024).
Muldrow was a Title VII case. “Title VII makes it unlawful for an employer ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’ ” Id. at 974 (quoting 42 U.S.C. § 2000e-2(a)(1)). In Muldrow, the Court interpreted the phrase “discriminate against.” Id. It held that the phrase “refer[s] to differences in treatment that injure employees.” Id. (internal quotation marks omitted). But it rejected “that the harm incurred [must be] significant. Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Id. (internal quotation marks omitted); see also id. at 973 n.1 (collecting rejected standards, including a Second Circuit case using the phrase “materially significant disadvantage”).
The Second Circuit has applied the same “materially adverse” standard to both Title VII and § 1981 employment-discrimination claims. See Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (“[T]he same core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981.” (cleaned up)); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (“In analyzing § 1981 claims, we apply the same standards as in Title VII cases.” (citation omitted)); Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (articulating one standard for adverse employment action when the plaintiff’s Title VII and § 1981 claims both “turn[ed] on whether he [could] prove an adverse employment action”).
So the only question after Muldrow (at least for this motion) is whether § 1981 differs from Title VII in some way that justifies a continued materiality rule. It does not. If anything, § 1981 is even more clearly categorical: it declares that “[a]ll persons … shall have the same right … to make and enforce contracts,” and it defines “make and enforce contracts” to include “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” § 1981(a)–(b) (emphasis added). As in the Title VII context, “[t]here is nothing in [§ 1981] to distinguish … between [adverse actions] causing significant disadvantages and [adverse actions] causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand ‘significance’ is to add words—and significant words, as it were—to the statute Congress enacted. It is to impose a new requirement on a [§ 1981] claimant, so that the law as applied demands something more of her than the law as written.” Muldrow, 144 S. Ct. at 974. So the action need not be materially adverse.2
Under this standard, Anderson has plausibly alleged that the PIP and her diminished role were adverse actions. These actions adversely affected Anderson’s benefits, privileges, terms, or conditions of employment by saddling her with more and worse tasks, tarnishing her permanent record, dampening her prospects of a promotion or raise, temporarily preventing her from transferring, excluding her from certain meetings and projects, and so on. Although some of these actions might once have been considered immaterial, see Littlejohn, 795 F.3d at 312 n.10, they are now enough to state a claim (so long as they alter Anderson’s “enjoyment of” any “benefits, privileges, terms, [or] conditions” of her employment contract, which was not a focus of the briefing on this motion).
Anderson has also met her “minimal burden of showing facts suggesting an inference of discriminatory motive.” Id. at 311. She says the same bosses who made comments and took actions that were racially inflected also took the allegedly adverse actions. And while her other allegations (like the exit package or being treated rudely) might “not independently constitute adverse employment actions,” “purpose may often be inferred from the totality of the relevant facts,” and those facts “provide relevant background evidence.”
[Citations omitted.]
The court concluded that, given the “minimal” showing required, plaintiff has done enough at this stage.