By Robert Iafolla
Employers can’t legally transfer workers or deny their request to move based on their race, sex, religion, or other protected category, the full D.C. Circuit said, expanding the scope of federal antidiscrimination law.
The US Court of Appeals for the District of Columbia Circuit in an en banc ruling issued Friday struck down its 1999 decision in Brown v. Brody, which said employers can’t be liable under Title VII of the 1964 Civil Rights Act for denying or forcing a lateral transfer unless the worker shows a pay reduction or another “objectively tangible harm.”
The ruling could trigger US Supreme Court review, as it creates a conflict with several other circuits that require some showing of additional harm when a worker challenges an allegedly discriminatory transfer or refusal to transfer under Title VII.
Six Democratic-appointed D.C. Circuit judges and one jurist chosen by a Republican president voted to strike down Brown. Four judges selected by GOP presidents—including the circuit’s three Trump appointees—dissented.
The majority focused on the text of Title VII to support eliminating the tangible harm rule for lateral transfers. The law’s plain language makes clear that workers need not prove anything more than that they faced discrimination in the terms and conditions of employment based on a protected characteristic, the court said.
“Any additional requirement, such as Brown’s demand for ‘objectively tangible harm,’ is a judicial gloss that lacks any textual support,” Judges David Tatel, a Clinton appointee, and Douglas Ginsburg, a Reagan appointee, wrote for the court.
Friday’s decision revived a Washington, D.C., government worker’s claim that she was unlawfully denied her requests for a reassignment because of her sex. She sued in 2014.
A three-judge D.C. Circuit panel threw out the worker’s sex bias and retaliation claims in 2021, but the full circuit vacated that decision and agreed to review the Brown precedent a few months later.
“We’re pleased that our client, Mary Chambers, will have an opportunity to pursue her claims on the merits, which Brown v. Brody had prevented,” said Brian Wolfman, a law professor at Georgetown University.
A D.C. Attorney General’s Office spokeswoman declined to comment.
Both Chambers and the D.C. government argued that Brown should be struck down. The court appointed attorney Zachary Schauf of Jenner & Block LLP to defend that precedent.
The D.C. Circuit’s opinion referenced Schauf’s concession at oral argument that an employer putting out donuts for workers under a sign that read “Whites only” wouldn’t meet the tangible harm threshold from Brown.
“That alone shows just how much the atextual requirement of ‘objectively tangible harm’ frustrates Title VII’s purpose of ending discrimination in the workplace,” the court said.
Imposing a requirement that a worker show harm beyond just a biased transfer decision is unnecessary to protect employers from frivolous claims under Title VII, the D.C. Circuit said.
Precedents on pleading requirements, employers’ chance to offer a non-discriminatory reasons, and summary judgment standards “provide employers ample opportunity to terminate an unmeritorious discrimination claim without reading an extratextual limitation into Title VII,” the court said.
The majority also included Judges Sri Srinivasan, Patricia Millett, Cornelia Pillard, and Robert Wilkins, all of whom were appointed by Obama, as well Clinton appointee Judge Judith Rogers.
The majority declined to rule on whether Title VII includes a “de minimis” exception for discrimination that’s of very little importance, saying that a biased transfer or denied transfer request easily clears that bar.
But the Brown ruling should have been upheld in part because it honored the concept of harm that’s too minor to support a legal claim, according to the dissent penned by Judge Gregory Katsas, a Trump appointee.
The majority opinion throws the law into “disarray” and could have “sweeping consequences,” Katsas argued. To keep the ruling from extending into all claims of intentional discrimination, courts will have to build up precedent on what counts as terms and conditions of employment or develop new case law applying a de minimis exception to bias cases, he said.
“These undertakings may fail, in which case the floodgates will open,” Katsas said.
Judge Neomi Rao, a Trump appointee, and Karen Henderson, a George H.W. Bush appointee, signed onto Katsas’ dissent.
Judge Justin Walker, a Trump appointee, wrote a separate opinion partially dissenting from the majority. The court’s ruling, according to Walker, opens up the possibility that workers could sue for de minimis injuries.
“That makes an imperfect situation even worse—worse, that is, for everyone except those who will profit from unjustified settlements and expensive trials over the kinds of de minimis slights that Title VII does not cover,” Walker said.
The case is Chambers v. D.C., D.C. Cir. en banc, No. 19-07098, 6/3/22.
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By Robert Iafolla