A deeply divided panel upheld an award on Tuesday to Plaintiff Clifford Litton (“Plaintiff”), an African-American custodian who accused the Talawanda School District (“District”) of racial discrimination and retaliation when he was involuntarily transferred to a new school building and his request to transfer back was denied. Litton v. Talawanda School District, Case No. 10-3559 (June 26, 2012). The anomaly behind the Court’s decision rests in the fact that the jury awarded the Plaintiff damages, finding race had been a motivating factor behind the District’s actions, but concluded that the Plaintiff had not suffered an adverse employment action.

In disparate treatment cases lacking direct evidence of discrimination, courts apply the burden shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the first step of which requires a plaintiff to establish a prima facie case of discrimination. A critical element of a prima facie case of discrimination is whether the plaintiff, in fact, suffered an adverse employment action.

Upon receiving the verdict, the District argued that because the Plaintiff failed to prove an element of his prima facie case, the court was required to find no unlawful discrimination. The lower court entered judgment for the Plaintiff, finding once “the case proceed[s] to trial…we are no longer concerned with whether the plaintiff established a prima facie case, but instead focus on the actual question of discrimination.”

The Sixth Circuit upheld the trial court finding it well settled that a court should “disregard a jury’s assessment of [a plaintiff’s] prima facie case and instead focus on ‘the ultimate question of discrimination vel non.’” Citing the Supreme Court’s precedent in Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983), as adopted by the Sixth Circuit, the Sixth Circuit concluded that because the jury’s assessment of the Plaintiff’s prima facie case did not control its finding on the ultimate question of discrimination, the district court was “not only permitted to disregard the jury’s answer to the adverse employment action question, it was required to do so, and instead to evaluate the strength of the evidence as a whole.”

So did the Sixth Circuit create a claim for benign discrimination?  It appears so.  In a strongly worded dissent, Chief Judge Batchelder reminded the Court that Title VII does not ban mere discrimination, but only adverse discrimination. This requirement “is not merely some vestigial prima facie element that fades into the background as the case progresses, it is at the heart of the claim itself.” Moreover, the Chief Judge rejected all of the cases cited in the majority opinion, finding that none of the cases support the notion that the “ultimate question of discrimination disregard[s] whether the discrimination was[,] in fact[,] adverse.” Such a holding, the Chief Judge declares, would be “[n]onsensical,” as “[t]he whole purpose of Title VII, as stated clearly by its text and controlling case law, is preventing harmful discrimination, not the lamentable-but-benign discrimination that the jury found Litton experienced.”

While we wait to see whether the Sixth Circuit will reconsider this matter en banc, employers should remain vigilant in documenting employment decisions to help defend against claims of discrimination. At the very least, this best practice may bolster an employer’s chances of curtailing litigation at the summary judgment stage, and prevent a similar post-trial anomaly.