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83 Md. L. Rev. Online 1 (2023)

handle is hein.journals/endnot83 and id is 1 raw text is: A MATERIAL QUESTION: DOES TITLE VII APPLY TO MINOR EMPLOYMENT ACTIONS? ROBERT A. KEARNEY* As the Supreme Court recently stated, few federal laws can rank with Title VII of the Civil Rights Act of 1964. That makes it tempting to reserve the law for cases that are equally significant: a termination, for example, and not a shift change. Indeed, courts have been saving Title VII in this way for decades, principally by reading words into the statute that are not there and requiring a plaintiff to point to a material, adverse employment action. Creating a shadow statute is not legitimate, and it is also unnecessary because offour words already in the law: compensation, terms, conditions, or privileges of employment. Those are the only words that can be used to rule certain cases out. And if that means a minor case is ruled in? The beauty of a major law like Title VII is that there are no minor cases. IN TRODUCTION .......................................................................................... 2 I. W HAT THE STATUTE SAYS ...................................................................... 3 II. W HAT THE STATUTE DOES NOT SAY ........................................................5 III. CIRCUIT COURT CONSENSUS OR CONFLICT?..................................... 10 IV. COURTS AS GATEKEEPERS IN EMPLOYMENT LAW............................ 13 V. HOW MINOR IS TOO DE MINIMIS?....................................................... 18 VI. WHAT THREE CASES IN THE SUPREME COURT'S PAST TELL US ABOUT ITS FUTURE .......................................................................................20 VII. MEASURING MATERIALITY: A WAY FORWARD ...............................24 C O N CLU SION ............................................................................................. 27 © 2023 Robert A. Kearney * Edward R. Telling Professor of Business, Illinois Wesleyan University. B.A., University of Notre Dame; M.B.A., University of Illinois at Chicago; J.D., Notre Dame Law School. I am grateful to Thomas J. Piskorski, Seyfarth Shaw (Chicago), for commenting on a draft of this article and the staff and editors of the Maryland Law Review Online for expediting its publication. All errors and omissions are mine. 1

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