In Harrison v. Procter & Gamble Distributing LLC, Case No. 1:15-cv-514 (S.D. Ohio Nov. 17, 2017), District Court Judge Timothy Black reached the bizarre conclusion that the denial of a raise is not an adverse action and therefore not covered by Ohio state law prohibiting disability discrimination. Judge Black reasoned that an adverse action requires an adverse change in the conditions of employment, and therefore, the maintenance of the status quo is not covered. Although Beth Harrison brought her claim under state law, Judge Black relied on federal EEO law, so his reasoning is not limited to claims brought by Ohioans.
Plainly, Judge Black is wrong. The failure to hire someone is not a change in the terms of employment, but no one would dispute that EEO law prohibits the failure to hire someone for discriminatory reasons. Similarly, providing a raise to a non-disabled employee but not to a disabled employee because of the latter individual's disability is obviously covered. The issue under EEO law is whether you would have been treated better if you were another race or sex, or, as in this case, you did not have a disability. Failing to provide an employment benefit to an individual is no less adverse than taking away an employment benefit.
Some flaws in legal reasoning are subtle, but not here. Judge Black's mistake is a doozy.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.