It is a struggle for employers to go through various discrimination complaints brought against them by employees, especially when the complaints involve an infrequently litigated category under Title VII. The AutoZone case provides guidelines on how to deal with those cases.

Recently, the Seventh Circuit granted summary judgment for AutoZone in a Title VII case, where the plaintiff, an African American employee at AutoZone, alleged to have been discriminated against. One of the stores that he was stationed in was located in a neighborhood where the population consisted largely of Hispanics. The plaintiff sued AutoZone alleging that he was transferred out of that store in an effort to make it a "predominately Hispanic" store.

The governing provision in this case was subsection (2) of 42 U.S.C. § 2000e-2(a), which specifies an employment practice to be unlawful if an employer "limit[s], segregate[s], or classif[ies]" employees by "race, color, religion, sex, or national origin" "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect" the employee's employment. Title VII cases are not often litigated under this subsection, but rather under subsection (1) ("it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge" or "to discriminate against any individual … because of … race, color, religion, sex, or national origin."). For those who are unfamiliar with subsection (2), it might be difficult to discern the difference between the two subsections. The Seventh Circuit, in AutoZone, provided guidance as to how the two subsections could be different.

First, the Court pointed out a major difference between the subsections, which is that an employer can violate the second subsection, but not the first, if its action "tend[s] to deprive any individual of employment opportunities." This means that an employer can still be liable even if the action it engaged in does not specifically entail an "adverse employment action," as long as it had some tendency to deprive an employee of any employment opportunities.

However, the Court emphasized an employee must provide evidence that the employer's action in question had at least some detrimental effect on her working conditions, such as demotion, or reduction in pay or benefits. Therefore, it must be noted that a "purely lateral transfer" will not be deemed to have even a tendency of deprivation and consequently will not violate subsection (2). Because the working conditions of the plaintiff in AutoZone was virtually unchanged after his transfer, the Court concluded that a reasonable jury could not have found that AutoZone is liable under Title VII due to lack of evidence.

As a result, employers should understand that they will not be completely off the hook simply because they did not engage in any "adverse employment action." The scope of subsection (2) is broad so as to include even a tendency to deprive employment opportunities as violation of Title VII. In order to refrain from falling within the ambit of subsection (2), employers should be wary of their actions that could create negative impacts on an employee's working conditions.