In Litton v. Talawanda Sch. Dist. (6th Cir. 6/26/12), a demoted and transferred custodian sued his employer for age and race discrimination. The jury concluded that Litton did not prove that he had suffered an adverse action, yet proved that the employer treated him differently because of his race. Amazingly, the Sixth Circuit upheld this verdict, concluding that the absence of an adverse action was irrelevant to the jury's finding on the ultimate issue of whether discrimination occurred. Does this ruling unwittingly create a cause of action for benign discrimination? Does the law really provide a remedy for employment decisions that did not result from an adverse action?
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