Mary Chambers v. DC (EN BANC)

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 26, 2021 Decided June 3, 2022
No. 19-7098
MARY E. CHAMBERS,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
On Rehearing En Banc
Brian Wolfman argued the cause for appellant. With him
on the briefs were David A. Branch and Madeline Meth.
Anna M. Baldwin, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States in support of
appellant. With her on the brief were Kristen Clarke, Assistant
Attorney General, Bonnie I. Robin-Vergeer, Attorney, Jennifer
S. Goldstein, Associate General Counsel, Equal Employment
Opportunity Commission, and Sydney A.R. Foster, Assistant
General Counsel.
Stephen B. Pershing and Carolyn L. Wheeler were on the
brief for amicus curiae Metropolitan Washington Employment
Lawyers Association in support of appellant.
2
Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J. Zolle
were on the brief for amicus curiae Constitutional
Accountability Center in support of appellant.
Caroline S. Van Zile, Principal Deputy Solicitor General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With her on the brief were Karl
A. Racine, Attorney General, Loren L. AliKhan, Solicitor
General, at the time the brief was filed, Holly M. Johnson,
Senior Assistant Attorney General, and Megan D. Browder,
Assistant Attorney General.
Zachary C. Schauf, appointed by the court, argued the
cause and filed the brief as amicus curiae.
Before: SRINIVASAN, Chief Judge, HENDERSON, ROGERS,
TATEL *, MILLETT, PILLARD, WILKINS, KATSAS, RAO, WALKER,
and JACKSON **, Circuit Judges, and GINSBURG, Senior Circuit
Judge.
Opinion for the Court filed by Circuit Judge TATEL and
Senior Circuit Judge GINSBURG.
Opinion concurring in the judgment in part and dissenting
in part by Circuit Judge WALKER.
Dissenting opinion by Circuit Judge KATSAS, with whom
Circuit Judges HENDERSON and RAO join.
TATEL, Circuit Judge, and GINSBURG, Senior Circuit
Judge: In 1999, our court ruled in Brown v. Brody that the
*
Judge Tatel assumed senior status after this case was argued and
before the date of this opinion.
**
Judge Jackson did not participate in this matter.
3
denial or forced acceptance of a job transfer is actionable under
Title VII of the Civil Rights Act of 1964 only if the employee
suffered “objectively tangible harm.” 199 F.3d 446, 457.
Because this rule is inconsistent with Title VII and because
intervening Supreme Court authority has eroded its reasoning,
we now overrule it. We hold that an employer that transfers an
employee or denies an employee’s transfer request because of
the employee’s race, color, religion, sex, or national origin
violates Title VII by discriminating against the employee with
respect to the terms, conditions, or privileges of employment.
I
Mary Chambers worked in the District of Columbia’s
Office of the Attorney General for more than twenty years
before this litigation, first as a clerk and later as a Support
Enforcement Specialist and investigator. Complaining of a
larger caseload than that of her colleagues, she sought
numerous transfers to different units in the Office. After these
requests were denied, she filed a charge of sex discrimination
with the Equal Employment Opportunity Commission,
contending that similarly situated male employees had been
granted transfers they requested. She filed this Title VII suit
against the District in 2014 alleging unlawful sex
discrimination and retaliation.
The district court, applying Brown, granted summary
judgment to the District. The court concluded that Chambers
had proffered no evidence that the denial of her transfer
requests, even if motivated by discriminatory animus, caused
her “‘objectively tangible harm.’” Chambers v. District of
Columbia, 389 F. Supp. 3d 77, 93 (D.D.C. 2019) (quoting
Brown, 199 F.3d at 457). Noting we were bound by Brown, a
panel of this court affirmed for the same reason. Chambers v.
District of Columbia, 988 F.3d 497, 501 (2021). The members
4
of the panel—the authors of this opinion—wrote separately,
however, to echo concerns voiced in prior opinions that
Brown’s limitation on claims for discriminatory lateral
transfers contravenes Title VII, which makes no reference to
“objectively tangible harm” or any similar requirement. Id. at
503–04; see Ortiz-Diaz v. U.S. Department of Housing &
Urban Development, 867 F.3d 70, 80–81 (D.C. Cir. 2017)
(Rogers, J., concurring); id. at 81 (Kavanaugh, J., concurring).
The panel members urged “that the full court hear this case en
banc to correct this clear legal error.” Chambers, 988 F.3d at
506. Heeding that call, the full court granted rehearing en banc
to reconsider Brown’s rule that the denial or forced acceptance
of a job transfer is actionable under Title VII, 42 U.S.C.
§ 2000e-2(a)(1), only if the employee suffered “‘objectively
tangible harm.’” Chambers v. District of Columbia, No. 19-
7098, 2021 WL 1784792 (May 5, 2021) (quoting Brown, 199
F.3d at 457).
On rehearing, Chambers contends that Brown is facially
inconsistent with Title VII. In her view, discrimination
“connotes any differential treatment,” and Title VII prohibits
all workplace discrimination based upon a protected
characteristic. Appellant’s Br. 16. The United States filed an
amicus brief in support of Chambers. The District also agrees
that Title VII has no requirement of “objectively tangible
harm” and that discriminatory transfers violate Title VII, but
nonetheless urges us to stop short of accepting Chambers’s
broad formulation, lest the courts be deluged by challenges to
“de minimis or harmless” workplace decisions. Appellee’s Br.
10. With the parties in agreement that Brown should be
overruled, we appointed Zachary C. Schauf as amicus curiae to
defend the rule in Brown. He has ably done so, and the court
thanks him for his assistance.
5
II
The parties agree that Chambers’s claim is covered by the
antidiscrimination provision of Title VII, section 703(a)(1),
which makes it “an unlawful employment practice . . . to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Chambers claims
her employer denied her repeated requests for a transfer to a
different unit while granting similar requests to male
employees. Therefore, the question before us, put in terms of
the relevant statutory text, is whether an employer that denies
an employee’s request for a job transfer because of her sex (or
another protected characteristic) “discriminate[s] against” the
employee with respect to the “terms, conditions, or privileges
of employment.” As we show below, the answer provided by
the straightforward meaning of the statute is an emphatic yes,
and that answer is fully consistent with Supreme Court
precedent.
A
We begin by parsing the statute, giving undefined terms
their “ordinary meaning.” Taniguchi v. Kan Pacific Saipan,
Ltd., 566 U.S. 560, 566 (2012). The relevant part of section
703(a)(1) is capacious: By leaving undefined the phrase
“terms, conditions, or privileges of employment,” the Congress
“evince[ed] a[n] . . . intent to strike at the entire spectrum of
disparate treatment . . . in employment.” Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (internal quotation
marks omitted). Although the phrase is not without limits—
not everything that happens at the workplace affects an
employee’s “terms, conditions, or privileges of
6
employment”—the transfer of an employee to a new role, unit,
or location (as opposed to the mere formality of a change in
title that Judge Walker instances in his separate opinion)
undoubtedly is included. Indeed, as the Government aptly
says, “it is difficult to imagine a more fundamental term or
condition of employment than the position itself.” Br. for
Resp’t in Opp. at 13, Forgus v. Shanahan, 141 S. Ct. 234(2020) (No. 18-942), 2019 WL 2006239, at *13 (cleaned up).
The meaning of the term “discriminate” is also
straightforward. “Discrimination” refers to “differential
treatment.” Jackson v. Birmingham Board of Education, 544
U.S. 167, 174 (2005). The unadorned wording of the statute
admits of no distinction between “economic” and “non-
economic” discrimination or “tangible” and “intangible”
discrimination. See Meritor, 477 U.S. at 64. Nor does the
statute distinguish between “subtle” or “overt” discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801
(1973). Rather, Title VII prohibits all discrimination with
respect to terms and conditions of employment.
The statute speaks of “discriminat[ing] against” an
employee because of a protected characteristic. “No one
doubts that the term ‘discriminate against’ refers to distinctions
or differences in treatment that injure protected individuals.”
Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. 53, 59 (2006); see also Bostock v. Clayton County, 140 S.
Ct. 1731, 1740 (2020) (“To ‘discriminate against’ a person,
then, would seem to mean treating that individual worse than
others who are similarly situated.”). Refusing an employee’s
request for a transfer while granting a similar request to a
similarly situated employee is to treat the one employee worse
than the other. Like “refus[ing] to hire” or “discharg[ing]” an
employee, refusing a request for a transfer deprives the
employee of a job opportunity. An employer that does this
7
because of the employee’s “race, color, religion, sex, or
national origin” has surely discriminated against the first
employee because of a protected characteristic.
Once it has been established that an employer has
discriminated against an employee with respect to that
employee’s “terms, conditions, or privileges of employment”
because of a protected characteristic, the analysis is complete.
The plain text of Title VII requires no more. Any additional
requirement, such as Brown’s demand for “objectively tangible
harm,” is a judicial gloss that lacks any textual support.
Applying the statute as written to discriminatory job transfers
does not, as the dissent claims, create an “artificial distinction
between transfers and everything else.” Dissenting Op. at 29.
To the contrary, it treats discriminatory transfers the same as
any other discrimination with respect to the “terms, conditions,
or privileges of employment.”
Our amicus tries to avoid this straightforward conclusion
by invoking the canon of ejusdem generis to argue that section
703(a) is limited to employment actions that are cognizable
under the rule set forth in Brown. In Babb v. Wilkie, the
Supreme Court applied this canon to conclude that the similarly
worded statutory prohibition against age discrimination did not
“encompass things that occur before a final decision is made.”
140 S. Ct. 1168, 1176 n.4 (2020). That lends no support to the
amicus’s completely different application of the canon.
However much the general term embraces, it surely includes
refusing a job transfer request, the functional equivalent of
“refus[ing] to hire” an employee for a particular position.
One last point: Our amicus and the dissent argue that for
a claim to be cognizable under section 703(a)(1), the plaintiff
must allege more than de minimis harm because the principle
de minimis non curat lex—the law is not concerned with
8
trifles—is assumed to be incorporated in every statute, absent
an indication to the contrary, see Wisconsin Department of
Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992).
Whatever the merits of this argument, Brown excludes far more
than de minimis harms. We have, for example, held that
“public humiliation or loss of reputation”—injuries that have
traditionally supported tort liability at common law, see
Memphis Community School District v. Stachura, 477 U.S.
299, 306–07 (1986)—fail to satisfy Brown’s requirement of an
“objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1130–31 (D.C. Cir. 2002). In any event, we need not decide
today whether Title VII includes a de minimis exception
because the discriminatory denial of a job transfer request,
which deprives an employee of an employment opportunity
offered to a similarly situated colleague, easily surmounts this
bar.
B
1
Brown made no attempt to ground the requirement of an
“objectively tangible harm” in the statute. Instead, it based that
requirement upon “the clear trend of authority” in the decisions
of other circuits and upon the Supreme Court’s then-recent
decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742(1998), which it viewed as having “reinforced” the
requirement. 199 F.3d at 455–57 (internal quotation marks
omitted). For the reasons mentioned above, we are convinced
that Brown’s approach is clearly mistaken, and that conviction
is not overcome by any “trend of authority,” let alone one
marred by inconsistency, see below, section III.
Whatever reinforcement Ellerth furnished when Brown
was decided has since been undermined by the Supreme
Court’s decision in White. In Ellerth, the Court relied upon
9
principles of agency law to hold that an employer has no
affirmative defense to vicarious liability under Title VII for a
hostile work environment when harassment by a supervisor
“culminates in a tangible employment action.” 524 U.S. at 765.
The Brown court apparently perceived in that conclusion an
implicit endorsement of a “tangible harm” requirement in Title
VII claims involving direct liability. See 199 F.3d at 456.
The Supreme Court put that notion to rest in White,
however, when it explained that “Ellerth did not discuss the
scope of [Title VII’s] general antidiscrimination provision,”
548 U.S. at 65, and that it had spoken of a “‘tangible
employment action’ . . . only to ‘identify a class of [hostile
work environment] cases’ in which an employer should be held
vicariously liable (without an affirmative defense) for the acts
of supervisors,” id. at 64 (alteration in original) (quoting
Ellerth, 524 U.S. at 760–61). After White, no basis remains for
thinking Ellerth supports, even implicitly, the approach
adopted in Brown.
2
Finding no support in the statute or in Ellerth, our amicus
and the dissent seek refuge in Supreme Court precedent dealing
with the antiretaliation provision of Title VII. Our conclusion
about the meaning of the antidiscrimination provision,
however, is fully consistent with that precedent because there
are fundamental differences between the antidiscrimination
and the antiretaliation provisions.
The antiretaliation provision of Title VII, section 704(a),
makes it an “unlawful employment practice for an employer to
discriminate against . . . any individual . . . because he has
opposed any practice made an unlawful employment practice
by this subchapter . . . .” 42 U.S.C. § 2000e-3(a). In White, the
Court identified the contours of this provision, concluding that
10
because it is “important to separate significant from trivial
harms,” 548 U.S. at 68, only a retaliatory act that is “materially
adverse” to the plaintiff is actionable, id. at 67–68. The Court
further concluded that the standard for judging “material
adversity” must be objective, meaning it must be judged from
the perspective of a reasonable employee, because this is a
“judicially administrable” standard that “avoids the
uncertainties and unfair discrepancies that can plague a judicial
effort to determine a plaintiff’s unusual subjective feelings.”
Id. at 68–69. The amicus argues that the reasons the Court
provided for reading those limitations into the antiretaliation
provision are just as applicable to the antidiscrimination
provision.
This argument ignores a fundamental difference between
the two provisions: Unlike the antidiscrimination provision,
the antiretaliation provision is not expressly limited to actions
affecting the terms, conditions, or privileges of employment.
Reasoning that this terminological difference must “make a
legal difference,” id. at 63, the Court held that the
antiretaliation provision prohibits even retaliatory actions that
do not affect the terms, conditions, or privileges of
employment, for example, an employer making a false criminal
charge against an employee who had complained of
discrimination, or a law enforcement agency refusing to
investigate death threats made against an employee who had
complained of discrimination, id. at 63–64 (citing Rochon v.
Gonzales, 438 F.3d 1211, 1213 (D.C. Cir. 2006) and Berry v.
Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996)).
It was only after adopting this expansive interpretation of
the antiretaliation provision that the Court was faced with the
problem of “separat[ing] significant from trivial harms.” Id. at
68. The Court therefore looked outside the text of the provision
for the necessary limiting principle. To that end, the Court
11
identified the purpose of the antiretaliation provision as
preventing “employer interference with unfettered access to
Title VII’s remedial mechanisms” and concluded the provision
should therefore be limited to “employer actions that are likely
to deter victims of discrimination from complaining to the
EEOC, the courts, and their employers” or as the Court put it,
employer actions that are “materially adverse” to an employee.
Id. (internal quotation marks omitted). The Court then had to
decide how best to measure the likely deterrent effect of a
challenged action; as mentioned above, the Court adopted an
objective approach because it is more judicially administrable.
None of these considerations applies to the
antidiscrimination provision. By tethering actionable behavior
to that which affects an employee’s “terms, conditions, or
privileges of employment,” the antidiscrimination provision by
its terms provides the necessary limiting principle. When the
phrase “terms, conditions, or privileges of employment” is
reasonably construed, there is no danger that faithful
enforcement of the antidiscrimination provision will turn Title
VII into a “general civility code” for the workplace, Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
Moreover, determining whether a challenged action relates
to “terms, conditions, or privileges of employment” is a purely
objective inquiry, well within the competence of a court. When
it comes to the antidiscrimination provision, therefore, there
simply is no need to engage in a “reasonable employee” inquiry
to keep the court’s task within manageable limits.
Our conclusion that the holding in White does not apply to
the antidiscrimination provision is also more consistent with
the different roles played by the two provisions. The role of
the antiretaliation provision is to prevent “employer
interference with unfettered access to Title VII’s remedial
12
mechanisms.” White, 548 U.S. at 68 (internal quotation marks
omitted). A “material adversity” requirement, which excludes
actions insufficient to deter an employee from seeking a
remedy for a Title VII violation, is entirely consistent with this
objective. The antidiscrimination provision, by contrast, aims
“to prohibit all practices in whatever form which create
inequality in employment opportunity due to discrimination on
the basis of race, religion, sex, or national origin,” Franks v.
Bowman Transportation Co., 424 U.S. 747, 763 (1976), and to
create “a workplace where individuals are not discriminated
against because of their racial, ethnic, religious, or gender-
based status,” White, 548 U.S. at 63. Thus, the
antidiscrimination provision “seeks to prevent injury to
individuals based on who they are,” while “[t]he antiretaliation
provision seeks to prevent harm to individuals based on what
they do.” Id.Our dissenting colleagues also contend that precedent
governing hostile work environment claims suggests that Title
VII prohibits only objectively “‘severe’” discrimination,
assessed in terms of how it “‘would reasonably be perceived’
by someone in the employee’s position.” Dissenting Op. at 9
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21–22
(1993)). That defense of Brown fares no better. The thrust of
the hostile work environment cases is that an abusive working
environment amounts to a “constructive alteration[] in the
terms or conditions of employment” only if harassment is
severe or pervasive. Ellerth, 524 U.S. at 752 (emphasis added).
Those cases have no bearing on a case in which an employer
discriminates against an employee with respect to the actual
terms or conditions of employment—for example, by
transferring an employee to a new position because of the
employee’s race or sex.
13
Contrary to the dissent’s characterization of the resulting
jurisprudence as “harmless,” Dissenting Op. at 22, grafting an
“objectively tangible harm” requirement onto the
antidiscrimination provision has had consequences glaringly
inconsistent with the objectives of Title VII’s
antidiscrimination provision. One need look no further than
this case. Under the “objectively tangible harm” requirement,
an employer that denies an employee’s request for a transfer
because of the employee’s sex (or race, etc.) would escape
liability under Title VII unless the employee could show she
suffered an “objectively tangible harm,” even though the denial
of the request unquestionably deprived the employee of an
equal employment opportunity. Even more perverse, as our
amicus conceded at oral argument, an employer that provides
doughnuts every week for employees but hangs a “whites only”
sign over the doughnuts has not caused an “objectively tangible
harm” to non-white employees. Recording of Oral Arg.
2:04:12–2:05:48. That alone shows just how much the atextual
requirement of “objectively tangible harm” frustrates Title
VII’s purpose of ending discrimination in the workplace.
C
We are unpersuaded by our amicus’s argument that the
rule in Brown is necessary to shield employers from “judicial
micromanagement of business practices.” Amicus Br. 38
(quoting Mungin v. Katten Muchin & Zavis, 116 F.3d 1549,
1556 (D.C. Cir. 1997)). Overruling Brown, he posits, would
make a federal case out of “[a] salesperson transferred from
sporting goods to power tools.” Id. at 1. But of course, an
employer remains free to transfer an employee from one
department to another for no reason or for any reason at all—
any reason, that is, except the employee’s “race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). We
disagree with the amicus that refusing to let women work in the
14
power tools department because of gender stereotypes, for
example, is part of the “minutiae of personnel management”
that escapes Title VII’s notice. Amicus Br. 39 (internal
quotation marks omitted). To the contrary, it is exactly the sort
of workplace discrimination Title VII aims to extinguish. Yet,
as the amicus conceded at oral argument, Brown allows
employers to engage in that discrimination with impunity
unless an employee can show some additional “objective”
harm. Recording of Oral Arg. 1:50:58–1:52:06.
Moreover, well-established case law adequately protects
employers from frivolous claims. If a Title VII plaintiff fails
to plead “‘sufficient factual matter’” to state a discrimination
claim that is “‘plausible on its face,’” then the district court
should dismiss the case before discovery. Harris v. D.C. Water
& Sewer Authority, 791 F.3d 65, 68 (D.C. Cir. 2015) (some
internal quotation marks omitted) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). And under the framework set forth
in McDonnell Douglas, a Title VII plaintiff relying upon
circumstantial evidence must establish “an inference of
discrimination” before the burden shifts to the employer to
“identify [a] legitimate, non-discriminatory” reason for its
actions. Walker v. Johnson, 798 F.3d 1085, 1091–92 (D.C. Cir.
2015). To survive summary judgment, an employee claiming
a discriminatory transfer denial therefore must show not only
that the employee’s transfer request was rejected, but that it
“‘was rejected under circumstances which give rise to an
inference of discrimination.’” Harding v. Gray, 9 F.3d 150,
152 (D.C. Cir. 1993) (quoting Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). These doctrines
provide employers ample opportunity to terminate an
unmeritorious discrimination claim without reading an extra-
textual limitation into Title VII.
15
At bottom, our disagreement with our amicus and the
dissent is this. In their view, the Brown rule is necessary to
“screen out cases involving objectively insubstantial injuries
alleged to flow from garden-variety workplace assignments
and interactions.” Dissenting Op. at 30. In our view, we ought
to read Title VII to mean what it says—that it prohibits any
“discriminat[ion] against [an] individual with respect to . . .
terms, conditions, or privileges of employment,” 42 U.S.C.
§ 2000e-2(a)(1), even if that that discrimination is “garden-
variety.” This saves courts the trouble of administering an
open-ended requirement of objectively material injury found
nowhere in the statute’s text. And it is more consistent with
the statute’s “intent to strike at the entire spectrum of disparate
treatment . . . in employment.” Meritor, 477 U.S. at 64(internal quotation marks omitted).
III
Having concluded that Brown is wrong, we now consider
whether to set it aside. Our court, like the Supreme Court,
observes the doctrine of stare decisis—“‘the idea that today’s
[c]ourt should stand by yesterday’s decisions.’” Allegheny
Defense Project v. FERC, 964 F.3d 1, 17 (D.C. Cir. 2020) (en
banc) (alteration in original) (quoting Kimble v. Marvel
Entertainment, LLC, 576 U.S. 446, 455 (2015)). Even in the
rare instances in which it is appropriate to grant rehearing en
banc, departure from stare decisis “‘demands special
justification.’” Critical Mass Energy Project v. Nuclear
Regulatory Commission, 975 F.2d 871, 875 (D.C. Cir. 1992)
(en banc) (quoting Arizona v. Rumsey, 467 U.S. 203, 212
(1984)). We have also explained, however, that stare decisis
applies with less force to our opinions than to those of the
Supreme Court, both because the circuit courts “play a different
role in the federal system” and because our precedent “is
16
generally established by the majority vote of just three circuit
judges.” Id. at 876.
We have previously identified two main reasons for
overruling circuit precedent. First, “it is appropriate for the en
banc court to set aside circuit precedent when, ‘on
reexamination of an earlier decision, it decides that the panel’s
holding on an important question of law was fundamentally
flawed.’” Allegheny, 964 F.3d at 18 (quoting Critical Mass,
975 F.2d at 876). “We also may depart from circuit precedent
when ‘intervening development[s]’ in the law—such as
Supreme Court decisions—‘ha[ve] removed or weakened the
conceptual underpinnings from the prior decision[.]’” Id.(alterations in original) (quoting United States v. Burwell, 690
F.3d 500, 504 (D.C. Cir. 2012) (en banc)). Both reasons
support overruling Brown.
Brown is fundamentally flawed because it “elevated policy
concerns . . . over the plain statutory text.” Id. at 17. The plain
text of section 703(a)(1) contains no requirement that an
employee alleging discrimination in the terms or conditions of
employment make a separate showing of “objectively tangible
harm.” Members of this court have repeatedly noted that
Brown is therefore out of step with the “straightforward”
meaning of Title VII. Chambers, 988 F.3d at 503 (Tatel and
Ginsburg, JJ., concurring); see, e.g., Ortiz-Diaz, 867 F.3d at 81
(Kavanaugh, J., concurring) (“[T]ransferring an employee
because of the employee’s race (or denying an employee’s
requested transfer because of the employee’s race) plainly
constitutes discrimination with respect to ‘compensation,
terms, conditions, or privileges of employment’ in violation of
Title VII.” (quoting 42 U.S.C. § 2000e-2(a)). Our dissenting
colleagues contend that this defect is insufficiently serious to
overcome stare decisis, but it is exactly the same defect we
relied on in Allegheny. See Dissenting Op. at 19–21. In that
17
case, the en banc court held that a panel decision was
fundamentally flawed because, like Brown, it failed to comport
with the Supreme Court’s command to “‘enforce plain and
unambiguous statutory language . . . according to its terms.’”
Allegheny, 964 F.3d at 18 (quoting Intel Corp. Investment
Policy Committee v. Sulyma, 140 S. Ct. 768, 776 (2020)).
“Because the approach to statutory construction reflected in
[Brown] was fundamentally flawed and grounded in a mode of
statutory construction that has been foreclosed by the Supreme
Court, stare decisis principles do not stand in the way of the en
banc court holding that [Title VII’s antidiscrimination
provision] means what it says.” Id.In addition, as explained above, the Supreme Court’s
decision in White, decided seven years after Brown, has
overtaken Brown’s reasoning. White clarified that Ellerth
required a showing of tangible harm only to identify a subset
of hostile work environment cases in which vicarious liability
would attach. White, 548 U.S. at 64. Therefore, Ellerth no
longer furnishes any support for Brown’s atextual
interpretation of the statute.
In overruling Brown, we acknowledge that the other
circuits that have addressed the question have held that a
plaintiff challenging the denial of a transfer under Title VII’s
antidiscrimination provision must make some additional
showing of tangible harm. Those circuits, however, speak with
discordant voices when it comes to the sort of harm that can
support a claim of a discriminatory job transfer. The Fifth
Circuit, for example, has held that “adverse employment
actions include only ultimate employment decisions such as
hiring, granting leave, discharging, promoting, or
compensating.” McCoy v. City of Shreveport, 492 F.3d 551,
559 (5th Cir. 2007) (per curiam) (cleaned up). The Fourth
Circuit has held just the opposite—that Title VII allows claims
18
for “[c]onduct short of ultimate employment decisions” in job
reassignment cases. James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371, 375–76 (4th Cir. 2004) (internal quotation marks
omitted). Both the Fifth and Eleventh Circuits consider a
transfer to be an actionable demotion if the new position is “less
prestigious or less interesting.” Thompson v. City of Waco, 764
F.3d 500, 503 (5th Cir. 2014) (internal quotation marks
omitted); see Hinson v. Clinch County, 231 F.3d 821, 830 (11th
Cir. 2000) (finding “a genuine issue of fact as to whether the
new job was less prestigious”). The Seventh Circuit disagrees,
holding that moving an employee “from an interesting job she
liked that involved overseeing several other people to a boring
job she didn’t like and that lacked any supervisory duties” falls
short of an adverse employment action. Place v. Abbott
Laboratories, 215 F.3d 803, 810 (7th Cir. 2000). In one
nonprecedential opinion, the Sixth Circuit faulted an employee
for adducing evidence of the prestigiousness of “postmaster
positions in general” rather than evidence specific to the city
where he sought a transfer to a postmaster position. Freeman
v. Potter, 200 F. App’x 439, 445 (6th Cir. 2006).
Two recent cases illustrate this wide divergence in how
other circuits treat discriminatory transfers. In EEOC v.
AutoZone, Inc., a Black employee’s supervisor told him that he
was being transferred to work in a different neighborhood
because the company wanted to keep his workplace
“predominantly Hispanic.” 860 F.3d 564, 565 (7th Cir. 2017)
(internal quotation marks omitted). Although that case dealt
with a different provision of Title VII, section 703(a)(2), the
Seventh Circuit indicated that the transfer at issue would not
amount to an adverse employment action because, in its view,
it insufficiently harmed the employee. Id. at 569–70. By
contrast, the Sixth Circuit held that discriminatory transfers are
actionable so long as the resulting harm is more than “de
minimis.” Threat v. City of Cleveland, 6 F.4th 672, 679 (6th
19
Cir. 2021). That court concluded that a job transfer surmounted
this bar when the only change in the employee’s job was not
receiving a shift on his “preferred day” of the week. Id. The
dissent downplays differences among the circuits as the sort of
“narrow disagreements” to be expected when courts apply a
“qualitative” standard. Dissenting Op. at 26. But it is hardly a
point in Brown’s favor that its rule is so amorphous as to
accommodate inconsistent outcomes in like cases.
Our own precedents applying Brown are no less muddled.
One panel held that refusing to transfer an employee to a
position “higher in the hierarchy” of a government agency
satisfied Brown’s requirement of “objectively tangible harm.”
Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003). By
contrast, another panel rejected a claim by an agency employee
who lost his temporary position as a section chief and was
made a unit chief “within [another] section.” Forkkio, 306 F.3d
at 1129–31. One panel held that the “inconvenience” of a “less
favorable schedule” was enough to support a claim for a
discriminatory transfer, Ginger v. District of Columbia, 527
F.3d 1340, 1344 (D.C. Cir. 2008), but another panel held that
Brown barred a claim based on a “shift change” to a “generally
less favorable” shift, Jones v. D.C. Department of Corrections,
429 F.3d 276, 281 (D.C. Cir. 2005). More recently, a divided
panel held that an employee suffered no “objectively tangible
harm” when he was “denied a transfer away from a racially and
ethnically biased supervisor to a non-biased supervisor more
likely to advance his career,” only to reverse course on
rehearing. Ortiz-Diaz, 867 F.3d at 71, 73–74.
We have time and again wrestled with Brown’s
requirement of “objectively tangible harm.” See, e.g., Ortiz-
Diaz, 867 F.3d at 74; Stewart, 352 F.3d at 426; Forkkio, 306
F.3d at 1131; Currier v. Postmaster General, 304 F.3d 87, 88
(2002); Russell v. Principi, 257 F.3d 815, 818 (2001);
20
Freedman v. MCI Telecommunications Corp., 255 F.3d 840,
844 (2001); Maramark v. Spellings, No. 06-5099, 2007 WL
2935411, at *1 (Sept. 20, 2007). Our district judges have done
so in dozens more cases. See, e.g., Savage v. Azar, 301 F. Supp.
3d 114, 129 (2018); Halcomb v. Office of the Senate Sergeant-
at-Arms, 563 F. Supp. 2d 228, 240 (2008); Oliver-Simon v.
Nicholson, 384 F. Supp. 2d 298, 308 (2005). These cases have
consumed enormous judicial resources seeking to answer a
question far removed from the core Title VII inquiry—whether
an employer has discriminated against an employee based on a
protected characteristic. And they leave district courts adrift
with a line-drawing exercise unmoored from the statutory text.
Both our court’s experience and that of our sister circuits have
proven Brown’s standard largely unadministrable. Neither
practical nor doctrinal reasons justify persisting in this course.
Not a single member of this court truly advocates retaining
Brown in its present form, the dissent’s invocation of stare
decisis notwithstanding. The dissent would uphold Brown only
after draining it of substance and recasting it as a de minimis
rule. That revisionist account is belied by our two-decade
misadventure in applying Brown, and as Judge Walker
correctly points out in his separate opinion, by the outcome in
Brown itself. Thus, the real point of contention is how to
interpret Title VII’s antidiscrimination provision. We interpret
it consistent with its text to prohibit all discrimination in the
terms or conditions of employment.
IV
Without any footing in the text of Title VII or Supreme
Court precedent, there is no sound basis for maintaining Brown
as circuit law. For these reasons, we overrule Brown and hold
that discriminatory job transfers are actionable under Title VII.
21
We remand the case to the merits panel for disposition
consistent with this opinion.
So ordered.
WALKER, Circuit Judge, concurring in the judgment in
part, dissenting in part.
Title VII of the Civil Rights Act prohibits employment
discrimination based on “race, color, religion, sex, or national
origin.”1 To prevail on an antidiscrimination claim under Title
VII, plaintiffs must prove that they have suffered a non-de
minimis injury. That standard is far from onerous. It requires
only a showing that the injury is not “trifling” or “negligible.”2
Today, the Court could have clarified and embraced that
standard. Instead, it leaves open the possibility that plaintiffs
can successfully sue over 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.
I
Title VII’s antidiscrimination provision makes it unlawful
for an employer:
to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against
any individual with respect to his
compensation, terms, conditions, or privileges
of employment, because of such individual’s
race, color, religion, sex, or national origin.3
With that provision, “Congress intended to prohibit all
practices in whatever form which create inequality in
1
42 U.S.C. § 2000e-2(a)(1).
2
See De Minimis, Black’s Law Dictionary (11th ed. 2019) (cleaned
up).
3
42 U.S.C. § 2000e-2(a)(1).
2
employment opportunity due to discrimination on the basis of
race, religion, sex, or national origin.”4 It also protects against
workplace harassment that becomes so “severe or pervasive”
as to alter a “term, condition, or privilege of employment.”5
Brown v. Brody interpreted Title VII’s antidiscrimination
provision to require plaintiffs to show that they suffered an
injury that a “reasonable trier of fact” would deem “objectively
tangible harm.”6 By that, Brown may have meant objectively
“material” harm.7 But its reference to “tangible” harm
appeared to set a higher bar that has caused confusion in the
years since.8
Each of today’s opinions says the proper bar is not as high
as Brown made it sound. That leaves only the question of how
high the bar really is.
For the reasons explained by Judge Katsas, the answer is
that Title VII’s antidiscrimination provision makes actionable
only objectively material harm.9 And rather than repeat his
reasons, I join parts of I, II, III.A, III.B, and V of his opinion
insofar as they are consistent with this opinion.
I add two brief additional points. First, although we can
learn from our Court’s “two decades of judicial experience in
distinguishing substantial harms from insubstantial ones,”10 I
would give future panels license to break from those moments
4
Franks v. Bowman Transportation Co., 424 U.S. 747, 763 (1976).
5
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(cleaned up).
6
199 F.3d 446, 457 (D.C. Cir. 1999).
7
Dissent at 6.
8
Brown, 199 F.3d at 457.
9
Dissent at 7-13.
10
Dissent at 34.
3
in our Court’s past when it was not faithful to the standard as
Judge Katsas explains it today.
Second, for the same reasons Judge Katsas applies the
objectively-material-injury standard to the antidiscrimination
provision, the de minimis principle applies as well. The
“maxim de minimis non curat lex (‘the law cares not for
trifles’) is part of the established background of legal principles
against which all enactments are adopted, and which all
enactments (absent contrary indication) are deemed to
accept.”11 It is an “old law maxim” that parallels a more
modern idiom: Don’t make a federal case out of every
perceived slight.12 And nothing indicates that Congress
intended to displace the de minimis principle in Title VII’s
antidiscrimination provision.13 That provision is not “all about
trifles,”14 nor is it a “general civility code for the American
workplace.”15
I see little if any gap between a non-de-minimis-injury
standard (like that proposed by the District of Columbia,
embraced by the Sixth Circuit in Threat v. City of Cleveland,
and left open as a possibility by today’s decision) and the
correct understanding of an objectively-material-injury
11
Wisconsin Department of Revenue v. William Wrigley, Jr., Co.,
505 U.S. 214, 231 (1992).
12
Ware v. Hylton, 3 U.S. (3 Dall.) 199, 268 (1796) (opinion of
Iredell, J.).
13
See Threat v. City of Cleveland, 6 F.4th 672, 678-79 (6th Cir.
2021).
14
See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 234 (2014)
(emphasis omitted).
15
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.
53, 68 (2006) (quoting Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 80 (1998)).
4
standard (like that explained by Judge Katsas).16 After all, an
injury is non-de minimis when it causes more than “trifling” or
“negligible” harm.17 And an injury is material when it causes
more than “trivial harms.”18 In this context, it is hard to detect
any difference between “trifling,” “negligible,” and “trivial.”19
II
Under a non-de-minimis- or objectively-material-injury
standard, the next question is whether job transfers are
actionable. There are at least three possible answers. One,
which Chambers proposes and the Court adopts, creates a
categorical rule that all job transfers are actionable.20 Another,
which our precedents have understood Brown v. Brody to
impose, says that no job transfers are actionable absent a
separate showing of additional harm.21 The third avoids a
16
Compare Threat, 6 F.4th at 679, with dissent at 8, 13.
17
See De Minimis, Black’s Law Dictionary (11th ed. 2019) (cleaned
up).
18
See White, 548 U.S. at 68 (“We speak of material adversity
because we believe it is important to separate significant from trivial
harms.”).
19
In addition, whether we call the standard non-de minimis or
material, the Supreme Court has made clear that it must be an
objective inquiry. See id. (“We refer to reactions of a reasonable
employee because we believe that the provision’s standard for
judging harm must be objective.”).
20
Majority at 8.
21
See Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999); see also
Ortiz-Diaz v. U.S. Department of Housing & Urban Development,
867 F.3d 70, 74 (D.C. Cir. 2017) (“lateral transfers to different
positions within a Department offering the same pay and benefits are
ordinarily not changes in the terms, conditions, or privileges of
employment” (cleaned up)); id. at 81 (Kavanaugh, J., concurring)
(“Our precedents hold that discriminatory transfers (and
5
categorical rule for the ill-defined category of job transfers and
instead approaches job transfers as we would any other
employment action, by asking whether the plaintiff suffered
material harm.
Judge Katsas’s opinion favors the third approach.22 It
rejects a categorical rule. For two reasons, I agree.
First, categorical rules aren’t real rules when the category
is undefined. And as Judge Katsas and our precedents show,
“job transfers” are not a defined category of employment
actions.23 So either categorical rule would take courts on a
detour from the proper inquiry (whether a plaintiff has suffered
material harm) to a labeling game about whether an
employment action meets the definition of something (a job
transfer) that has no clear definition.
Second, neither categorical rule accurately applies the
materiality standard. An all-job-transfers-are-actionable rule
disregards the reality that the harm from some job transfers is
de minimis. For example, a city that is restructuring its police
department could change an employee’s title from “head
detective” to “chief investigator” without altering the role. Is
that a job transfer? Possibly. Is the change in the chief
discriminatory denials of transfers) are ordinarily not actionable
under Title VII.”).
22
Dissent at 13.
23
Dissent at 28-29; Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir.
2003) (“Because of the equality of pay and benefits, we may call it a
lateral transfer, but in reality, it is more similar to a denial of a
promotion”).
6
investigator’s terms, conditions, and privileges of employment
negligible? Almost certainly.24
In light of possibilities like that, it is not clear how to
reconcile the categorical rule Chambers proposes with the de
minimis standard that Title VII requires. Perhaps “job
transfer” incorporates a non-de minimis alteration of duties,
location, or other terms and conditions of the job. That seems
to be the District of Columbia’s quite reasonable approach.25
If the Court agrees with the District of Columbia, it could say
so.
On the other extreme is a rule that says no job transfers are
actionable absent additional harm like a change in salary or
benefits. That rule is at least as misguided as its opposite. No
opinion in today’s case endorses it.
Unfortunately, the same cannot be said for some of our
precedents. One case, for example, concluded that the denial
of a transfer from Washington, D.C. to Albany, New York
wasn’t actionable.26 Another case held that moving an
employee from a position where he collected a paycheck while
doing no work to a job with significant responsibilities wasn’t
actionable either.27 But a move to a different state is not a
24
I say “almost” because it would be material if the employer said
the change was because of race: When the racism of an act is overt
and undeniable, the act is material for the same reasons Judge Katsas
explains that separate doughnuts would be actionable. Dissent at 31-
32 n.5.
25
District of Columbia En Banc Brief at 8.
26
Ortiz-Diaz v. U.S. Department of Housing & Urban Development,
831 F.3d 488, 492 (D.C. Cir. 2016), rev’d on other grounds by Ortiz-
Diaz, 867 F.3d 70 (D.C. Cir. 2017).
27
Currier v. Postmaster General, 304 F.3d 87, 88-89 (D.C. Cir.
2002).
7
negligible alteration of the terms and conditions of
employment, nor of course is a significant increase in job
responsibilities.
Instead of attempting to impose a categorical rule, we
should ask in each case whether the change in the employee’s
job was material. That approach respects the necessarily fact-
intensive nature of the de minimis standard. Under it, plenty
of cases are obviously actionable, like moving an employee to
another city,28 forcing her to take the night shift,29
or transferring her from forklift operator to basic laborer.30
The job transfer in Brown itself should have fit that bill,
and it would have had Brown not misapplied its stated
objective-materiality standard. Regina Brown was a loan
officer at the Export-Import Bank.31 She had been working in
the Bank’s Africa/Middle East Division, a role that had
foreign-policy elements.32 Then, when the Bank reorganized
its staff, it transferred her to its Contracts Administration
Division, where she had a quite different set of duties.33 That
transfer was a material change in her terms of employment,
contrary to Brown’s conclusion.34
That error, combined with Brown’s reference to “tangible
harm,” has caused confusion.35 As noted above, we have
rejected actionable claims. We have asked plaintiffs to show
28
Ortiz-Diaz, 831 F.3d at 492.
29
Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021).
30
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.
53, 71 (2006).
31
Brown, 199 F.3d at 448.
32
Id. at 448-49.
33
Id. at 449.
34
See White, 548 U.S. at 70-71.
35
199 F.3d at 457.
8
an “extraordinary reduction in responsibilities” or
“significantly diminished” duties rather than a material
change.36 And we have repeatedly had to reverse district court
determinations that harms are immaterial in what should have
been straightforward cases.37
* * *
Our post-Brown confusion led plaintiffs like Mary
Chambers to litigate under the misapprehension that they must
show more of an injury than a job transfer with meaningfully
different job responsibilities. Today’s en banc court can
provide Chambers with an opportunity to meet a clarified
standard, and I would vacate and remand in order to do so. I
therefore join the part of the Court’s judgment that vacates and
remands to the District Court.38
But on remand, I would require Chambers to show that the
denial of her requested job transfer was a non-de minimis
injury — in other words, that the requested job transfer
36
Youssef v. FBI, 687 F.3d 397, 402 (D.C. Cir. 2012) (quoting
Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)); Czekalski
v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007).
37
See, e.g., Youssef, 687 F.3d at 399-400, 402 (a move from
coordinating counterintelligence operations to bagging and tagging
evidence); Freedman v. MCI Telecommunications Corp., 255 F.3d
840, 844 (D.C. Cir. 2001) (involuntary transfer to the night shift).
38
The majority remands to the merits panel. As I understand it, the
panel will need to vacate the district court’s grant of summary
judgment and remand for the district court to address the District of
Columbia’s separate argument that Chambers did not raise a dispute
of material fact as to D.C.’s motive for denying her a transfer. As I
would also vacate and remand for further summary-judgment
proceedings, I join based on that understanding.
9
included objectively material differences in job
responsibilities.
Title VII requires that standard. It “is not especially
onerous.”39 A job transfer can often — though not always —
clear that low bar.
39
Dissent at 2.
KATSAS, Circuit Judge, with whom Circuit Judges
HENDERSON and RAO join, dissenting: This case turns on what
kinds of injuries support disparate-treatment claims under Title
VII of the Civil Rights Act of 1964. In Brown v. Brody, 199
F.3d 446 (D.C. Cir. 1999), we held that an allegedly
discriminatory transfer from one job to another, or an allegedly
discriminatory denial of a transfer, is not actionable unless it is
“materially adverse” to the employee when viewed
“objectively” from the perspective of a reasonable person in the
employee’s position. Id. at 457. This rule is consistent with
statutory text, longstanding Supreme Court precedent, and the
bedrock principle that Title VII is not a “general civility code”
for the workplace. Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998). For more than two decades, we have
applied Brown’s requirement of an objectively material injury
both inside and outside the specific context of job transfers.
Our district court likewise has applied Brown in scores if not
hundreds of cases. And every other circuit has followed
Brown, in name or in substance.
My colleagues today overrule this landmark precedent, but
they give no sound justification for breaking so sharply from
law so settled. First, they argue that Brown was insufficiently
grounded in the relevant legal text. That contention is
mistaken, and it would not justify a departure from statutory
stare decisis even if it were correct. Second, they argue that
intervening decisions have undermined Brown. But the
passage of time has only made Brown stronger: One circuit
after another has agreed with it, and the most relevant later
Supreme Court decision, Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S. 53 (2006), strongly reinforced
Brown by requiring plaintiffs to show an objectively material
injury to pursue retaliation claims under Title VII. Third, my
colleagues argue that Brown has proven un-administrable.
That conclusion is also mistaken, and it overlooks that White
requires essentially the same standard for retaliation claims as
Brown requires for disparate-treatment claims.
2
Today’s decision may have sweeping consequences and
will cause substantial uncertainty regardless. My colleagues
formally limit their decision to job-transfer claims, explain that
not every workplace slight affects the terms and conditions of
employment, and reserve the possibility that Title VII may not
extend to de minimis injuries. But the decision cannot fairly be
confined to job transfers; just as the logic of Brown easily
extends to all disparate-treatment claims, so does the anti-
Brown logic now embraced by my colleagues. To keep today’s
decision within manageable limits, courts will have to build up
either a new jurisprudence of what counts as terms or
conditions of employment (an inquiry we have previously
undertaken only in the context of harassment claims), or a new
jurisprudence firmly applying the de minimis canon in this
context, or both. These undertakings may fail, in which case
the floodgates will open. And if they succeed, the relevant
decisions will simply track our Brown jurisprudence, albeit
under another doctrinal label.
Why throw the law into such disarray? My colleagues flag
decisions that, in their view, inappropriately dismissed claims
alleging substantial injuries. Given the volume of decisions
applying the Brown rule, the existence of individual cases that
seem overly generous to employers (or, for that matter, of
individual cases that seem overly generous to employees) is
hardly surprising. But rather than tossing aside two decades of
precedent, I would simply remind the district courts what much
of our Brown caselaw has already made clear—that the
requirement of an objectively material injury, although
important, is not especially onerous.
For these reasons, and as explained further below, I
respectfully dissent from the decision to overrule Brown.
3
I
Title VII of the Civil Rights Act prohibits employment
discrimination based on race, sex, or other inappropriate
considerations. Section 703(a)(1) of the Act, the core anti-
discrimination provision of Title VII, makes it unlawful for an
employer “to fail or refuse to hire or to discharge … or
otherwise to discriminate against” any individual, “with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Section
704(a), the anti-retaliation provision, makes it unlawful for any
employer “to discriminate against” any employee “because he
has opposed any practice” prohibited by Title VII “or because
he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” under Title
VII. Id. § 2000e-3(a). Section 706 affords a private right of
action to any person “claiming to be aggrieved” by a violation
of Title VII. Id. § 2000e-5(f)(1).
In Brown, we considered when transfers from one job to
another may support disparate-treatment claims under section
703(a)(1). Surveying sixteen lower-court decisions, we noted
“wide and deep” authority for the proposition that a lateral
transfer does not necessarily inflict a “materially adverse”
actionable injury. 199 F.3d at 455–56 (cleaned up). We also
explained that Burlington Industries, Inc. v. Ellerth, 524 U.S.
742 (1998), invoked this line of authority to hold that, in cases
involving sexual harassment by a supervisor, the employer is
automatically liable if, but only if, the supervisor took some
“tangible employment action” against the employee. 199 F.3d
at 456–57. Given all this, we announced “the following rule”:
a plaintiff who is made to undertake or who is denied a
lateral transfer—that is, one in which she suffers no
4
diminution in pay or benefits—does not suffer an
actionable injury unless there are some other materially
adverse consequences affecting the terms, conditions,
or privileges of her employment or her future
employment opportunities such that a reasonable trier
of fact could conclude that the plaintiff has suffered
objectively tangible harm. Mere idiosyncra[s]ies of
personal preference are not sufficient to state an injury.
Id. at 457 (emphases added). Applying this rule, we held that
the plaintiff in Brown had alleged only an idiosyncratic
preference for one position over another, thus giving us “no
objective basis” to find a material injury. See id.We have applied this rule in numerous cases since Brown.
In doing so, we have found sufficient harm in cases involving,
among other things, a transfer to the night shift, Freedman v.
MCI Telecomm. Corp., 255 F.3d 840, 844 (D.C. Cir. 2001), or
to a shift with irregular hours, Ginger v. District of Columbia,
527 F.3d 1340, 1344 (D.C. Cir. 2008). Repeatedly, we have
found sufficient harm if the employee was transferred to a
position with less attractive job responsibilities. See, e.g.,
Youssef v. FBI, 687 F.3d 397, 401 (D.C. Cir. 2012) (new
position “did not utilize [Youssef’s] skills and expertise”
(cleaned up)); Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir.
2011) (new position involved “complete loss of supervisory
responsibilities”); Pardo-Kronemann v. Donovan, 601 F.3d
599, 608 (D.C. Cir. 2010) (lawyer transferred “to a non-legal
position”); Czekalski v. Peters, 475 F.3d 360, 364–65 (D.C.
Cir. 2007) (“diminished … supervisory and programmatic
responsibilities”); Holcomb v. Powell, 433 F.3d 889, 902 (D.C.
Cir. 2006) (“extraordinary reduction in responsibilities”).
Likewise, we have held that the denial of a transfer to a
“supervisor’s position” caused sufficient harm, Stewart v.
Ashcroft, 352 F.3d 422, 426–27 (D.C. Cir. 2003), as did the
5
denial of a transfer “away from a biased supervisor,” Ortiz-
Diaz v. HUD, 867 F.3d 70, 74 (D.C. Cir. 2017). In contrast,
we have held that an employee’s “[p]urely subjective”
dissatisfaction with a new position is insufficient to support a
claim, as are objective but “not sufficiently significant” slights
such as being excluded from certain management meetings or
e-mails. Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir.
2002); see Currier v. Postmaster Gen., 304 F.3d 87, 88–89
(D.C. Cir. 2002) (transfer away from a “do nothing position”
to one “with some duties”); Stewart v. Evans, 275 F.3d 1126,
1135 (D.C. Cir. 2002) (“minor changes in work-related duties
or opportunities”).
We have also applied Brown outside the job-transfer
context, to screen out disparate-treatment claims involving
other objectively insubstantial alleged injuries. See, e.g., Baird
v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir. 2011) (critical
comments and shouting); Douglas v. Donovan, 559 F.3d 549,
553 (D.C. Cir. 2009) (failure to recommend employee for a
Presidential Rank Award); Patterson v. Johnson, 505 F.3d
1296, 1298 (D.C. Cir. 2007) (employee subjectively “fe[lt]
undermined” (cleaned up)); Broderick v. Donaldson, 437 F.3d
1226, 1233 (D.C. Cir. 2006) (attorney’s loss of opportunity to
submit briefs “directly to a top supervisor”); Taylor v. Small,
350 F.3d 1286, 1292–93 (D.C. Cir. 2003) (placement on
performance improvement plan); Russell v. Principi, 257 F.3d
815, 818–19 (D.C. Cir. 2001) (poor performance rating,
unconnected to any “bonus differential”). The common theme
of these cases is that section 703(a)(1) does not cover
“everything that makes an employee unhappy” at work. Id. at
818 (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th
Cir. 1996)).
In considering what constitutes an objectively material
injury, these decisions have treated disparate-treatment claims
6
under section 703(a)(1) and retaliation claims under section
704(a) as interchangeable. See, e.g., Forkkio, 306 F.3d at1130–32; Holcomb, 433 F.3d at 902; Douglas, 559 F.3d at 552.
II
Plaintiff Mary Chambers works in the child support
division of the Office of the Attorney General of the District of
Columbia. Beginning in 2008, Chambers repeatedly sought to
be transferred from the interstate unit of that division to its
intake unit. As her requests were denied, Chambers filed
charges with the Equal Employment Opportunity Commission.
After the EEOC declined to pursue her claims, Chambers filed
this lawsuit alleging that the transfer denials reflected both sex
discrimination and retaliation. She produced no evidence that
the intake unit offered employees any better work, pay, hours,
advancement opportunity, prestige, or other benefits than did
the interstate unit. Applying Brown, the district court granted
summary judgment to the District of Columbia. Chambers v.
District of Columbia, 389 F. Supp. 3d 77, 93–94 (D.D.C.
2019).
A panel of this Court affirmed, also based on Brown.
Chambers v. District of Columbia, 988 F.3d 497, 501–02 (D.C.
Cir. 2021) (per curiam). But the panel called for the en banc
Court to reconsider Brown and overrule it. See id. at 502–06
(Tatel and Ginsburg, JJ., concurring).
III
In holding that disparate-treatment claims require the
plaintiff to suffer an objectively material injury, Brown was
correctly decided as a matter of statutory text, Supreme Court
precedent, and the courts’ general authority to interpret express
statutory injury requirements.
7
A
Section 703(a)(1) makes it unlawful for an employer to
“discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of
employment,” because of prohibited considerations such as
race or sex. 42 U.S.C. § 2000e-2(a)(1). Section 706 authorizes
private civil actions by any individual “aggrieved” by a
violation of section 703(a)(1). Id. § 2000e-5(f)(1). Brown’s
requirement of an objectively material injury follows from
these provisions.
At an absolute minimum, the plaintiff must have suffered
some injury. Start with the phrase “discriminate against.” In
White, which involved a retaliation claim under section 704(a),
the Supreme Court, citing precedent under section 703(a)(1),
said “[n]o one doubts that the term ‘discriminate against’ refers
to distinctions or differences in treatment that injure protected
individuals.” 548 U.S. at 59 (emphasis added). And in Bostock
v. Clayton County, 140 S. Ct. 1731 (2020), which involved
section 703(a)(1), the Court cited White for the proposition that
“[t]o ‘discriminate against’ a person … would seem to mean
treating that individual worse than others who are similarly
situated.” Id. at 1740 (emphasis added). Moreover, a private
plaintiff must be “aggrieved” by a Title VII violation. In
common usage, “aggrieved” means “[h]aving suffered loss or
injury.” Black’s Law Dictionary 87 (revised 4th ed., 1968). In
civil-rights usage as well, an “aggrieved” person is one who
has “been injured by” an unlawful practice. 42 U.S.C.
§ 3602(i)(1) (Fair Housing Act definition). So, both the
substantive and private-cause-of-action provisions of Title VII
require a plaintiff to have been injured by an act of employment
discrimination.
8
Not every workplace slight constitutes discrimination
against an aggrieved employee. As the Supreme Court has
explained, “the venerable maxim de minimis non curat lex (‘the
law cares not for trifles’) is part of the established background
of legal principles against which all enactments are adopted,
and which all enactments (absent contrary indication) are
deemed to accept.” Wis. Dep’t of Rev. v. William Wrigley, Jr.,
Co., 505 U.S. 214, 231 (1992). Nothing in Title VII abrogates
this background principle. To the contrary, as many courts
have recognized, not every petty annoyance rises to the level
of “discriminat[ion] against” an employee. Threat v. City of
Cleveland, 6 F.4th 672, 678 (6th Cir. 2021) (Sutton, J.) (“To
‘discriminate’ reasonably sweeps in some form of an adversity
and a materiality threshold.”); Washington v. Ill. Dep’t of
Revenue, 420 F.3d 658, 661 (7th Cir. 2005) (Easterbrook, J.)
(“Congress could make any identifiable trifle actionable, but
the undefined word ‘discrimination’ does not itself command
judges to supervise the minutiae of personnel management.”).
For these reasons, a disparate-treatment plaintiff must prove an
injury that is at least material in the sense of being more than
de minimis.
The requirement of an objectively material injury is
confirmed by the canon of ejusdem generis, “which limits
general terms that follow specific ones to matters similar to
those specified,” CSX Transp., Inc. v. Ala. Dep’t of Rev., 562
U.S. 277, 294 (2011) (cleaned up). In section 703(a)(1), the
term “otherwise to discriminate against” is a general phrase
that follows specific adverse employment actions—“to fail …
to hire,” to “refuse to hire,” or “to discharge.” Construing the
statutory prohibition on age discrimination, which in pertinent
part is identically worded, the Supreme Court has invoked
ejusdem generis. Babb v. Wilkie, 140 S. Ct. 1168, 1176 n.4
(2020). Because the specific verbs here denote employment
actions that cause objectively material harm, the canon
9
similarly focuses the phrase “otherwise to discriminate
against.” To be sure, this phrase sweeps more broadly than the
specific prohibitions regarding hiring and firing, but it is not a
limitless catch-all for any workplace act, no matter how trivial.
Brown finds further support in section 703(a)(1)’s
limitation to acts regarding the “compensation, terms,
conditions, or privileges of employment.” 42 U.S.C. § 2000e-
2(a)(1). Consider the Supreme Court’s interpretation of this
language in cases involving workplace harassment. In that
context, the Court has imposed materiality and objectivity
requirements to screen out claims of insubstantial harm. To
direct harassing conduct at members of one race or sex is to
“discriminate against” the targets “because of” their race or
sex. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986). Yet not all discriminatory workplace harassment
violates section 703(a)(1). Instead, harassment is deemed to
alter the “terms, conditions, or privileges of employment,” and
thus is actionable, only if it is “severe or pervasive” enough to
create “an abusive working environment.” Id. at 67 (cleaned
up). Moreover, this “severe or pervasive” requirement must be
assessed “objectively,” in terms of how the harassment “would
reasonably be perceived” by someone in the employee’s
position. Harris v. Forklift Sys., 510 U.S. 17, 21–22 (1993).
And this requirement “prevents Title VII from expanding into
a general civility code.” Oncale, 523 U.S. at 81. These cases
all make clear that some acts of harassment, even if
discriminatory and in the workplace, do not “sufficiently affect
the conditions of employment to implicate Title VII.” Harris,
510 U.S. at 21–22. 1
1
I do not mean to suggest that the severe-or-pervasive
requirement developed in the harassment cases directly controls
conventional claims of disparate treatment. Cf. ante at 12. Rather,
my point is simply that the harassment cases understand the
10
B
White, which imposes an objectively material harm
requirement for retaliation claims under Title VII, cinches up
the case for Brown. The Court rendered two distinct holdings
in White. First, because section 704(a) contains no “terms,
conditions, or privileges of employment” requirement,
actionable retaliation may take the form of adverse action
outside the workplace. See 548 U.S. at 61–67. Second,
because section 704(a) requires the employer to “discriminate
against” the plaintiff, it “protects an individual not from all
retaliation, but from retaliation that produces an injury or
harm.” Id. at 67. The Court then spelled out the nature of the
requisite injury—the plaintiff “must show that a reasonable
employee would have found the challenged action materially
adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 68 (cleaned up and emphases
added). In justifying a “material adversity” standard, the Court
held it “important to separate significant from trivial harms,”
because Title VII “does not set forth ‘a general civility code for
the American workplace.’” Id. (quoting Oncale, 523 U.S. at
80). Likewise, an employee’s “decision to report
discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place at
work and that all employees experience.” Id. In justifying a
“reasonable employee” standard, the Court stressed that the
conditions-of-employment requirement to screen out claims for
objectively insubstantial injuries. For their part, my colleagues agree
that this requirement must be “reasonably construed” to prevent Title
VII from becoming a “‘general civility code’ for the workplace.” Id.
at 11 (quoting Oncale, 523 U.S. at 81). But they give no further
guidance on how to distinguish which employment actions are
material enough to affect the conditions of employment—the inquiry
that we have long performed under Brown.
11
assessment of harm “must be objective,” to avoid “unfair
discrepancies that can plague a judicial effort to determine a
plaintiff’s unusual subjective feelings” and to conform to the
“objective standards” used in other Title VII contexts such as
constructive discharge and hostile work environment. Id. at
68–69 (second emphasis added).
White’s second holding textually governs section
703(a)(1). Like section 704(a), section 703(a)(1) makes it
unlawful “to discriminate against” an individual for a
prohibited reason. The Supreme Court has long recognized a
“natural presumption that identical words used in different
parts of the same act are intended to have the same meaning.”
Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427,
433 (1932). Although defeasible by context, this presumption
of consistent usage applies most strongly where the two
provisions are closely connected. See, e.g., Mohasco Corp. v.
Silver, 447 U.S. 807, 826 (1980); A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts § 25, at 171–
73 (2012). Here, sections 703(a)(1) and 704(a) appear almost
immediately next to each other, at the beginning of the two
most prominent sections of Title VII. They share many
common words and phrases: Section 703, titled “Unlawful
employment practices,” states in its subsection (a) that “[i]t
shall be an unlawful employment practice for an employer—
(1) … to discriminate against any individual” with respect to
terms or conditions of employment “because of” the
individual’s protected characteristics. 42 U.S.C. § 2000e-
2(a)(1). Section 704, titled “Other unlawful employment
practices,” states in its subsection (a) that “[i]t shall be an
unlawful employment practice for an employer to discriminate
against” any employee or applicant for employment “because”
that person has been involved in enforcing Title VII. Id.
§ 2000e-3(a). And the provisions are linked thematically as
well as textually, given the Supreme Court’s holding that
12
retaliation based on complaints of discrimination is itself a
form of discrimination. Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167, 173–74 (2005). For these reasons, because
“discriminate against” requires an objectively material injury
as used in section 704(a), it also requires an objectively
material injury as used in section 703(a)(1).
White’s reasoning also carries over to section 703(a)(1).
As to materiality, the need “to separate significant from trivial
harms,” 548 U.S. at 68, applies to disparate-treatment claims
as well as to retaliation claims. To be sure, section 704(a)
applies to acts not affecting conditions of employment, and
thus is broader than section 703(a)(1) in that one respect. See
White, 548 U.S. at 61–63. But there is no necessary correlation
between whether an adverse act relates to employment and
whether it is substantial or trivial. Adverse acts outside the
workplace may be quite serious, such as filing false criminal
charges against an employee or failing to investigate death
threats against her. See id. at 63–64. And adverse acts inside
the workplace may be quite trivial, such as not allowing an
attorney to submit her draft briefs “directly to a top supervisor.”
Broderick, 437 F.3d at 1233. Moreover, White’s observation
that an “objective standard” of materiality “is judicially
administrable,” whereas a subjective one would produce
“uncertainties and unfair discrepancies,” applies equally to
harms alleged to flow from disparate treatment. See 548 U.S.
at 68–69. And White grounded its “objective standard” of harm
in the standards used “in other Title VII contexts” such as
constructive discharge and hostile environment, both of which
are actionable under section 703(a)(1). See id. at 69. 2
2
My colleagues treat White’s second holding (that retaliation
claims require an objectively material injury) as predicated on its first
holding (that retaliation can involve adverse action unrelated to
conditions of employment). Ante at 10–11. But the Court did not
13
White also sheds light on the appropriate treatment of cases
involving a reassignment of job responsibilities. The employee
in White had been reassigned from “forklift duty” to seemingly
less attractive “standard track laborer tasks” (which involved
janitorial functions like trash removal). 548 U.S. at 57, 70. The
Court acknowledged that reassignments often impose
objectively material harms, because “[a]lmost every job
category involves some responsibilities and duties that are less
desirable than others.” Id. at 70. Yet the Court also made clear
that the plaintiff must prove the harm in each case. It stressed
that “reassignment of job duties is not automatically
actionable.” Id. at 71. And building on its harassment
decisions, the Court explained that “[w]hether a particular
reassignment is materially adverse depends upon the
circumstances of the particular case, and ‘should be judged
from the perspective of a reasonable person in the plaintiff’s
position, considering all the circumstances.’” Id. (quoting
Oncale, 523 U.S. at 81) (cleaned up). Not surprisingly, the
Court found that material adversity in White itself was at least
a jury question, given the plaintiff’s evidence that the “forklift
operator position was objectively considered a better job,”
whereas the “track laborer duties were by all accounts more
arduous and dirtier.” Id. (cleaned up).
C
At a higher level of generality, Brown, White, and the
harassment cases simply spell out the contours of a statutory
injury requirement, which courts do routinely. For example,
the Supreme Court construes statutory causes of action
extending to anyone “injured … by reason of” a violation to
frame its second holding as a limitation on the first one. Instead, the
second holding interpreted the statutory phrase “discriminate
against,” see 548 U.S. at 59–60, 67, which limits the scope of both
section 704(a) and section 703(a)(1).
14
incorporate a background requirement of proximate causation.
See, e.g., Holmes v. SIPC, 503 U.S. 258, 265–70 (1992)
(RICO); Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 529–35 (1983) (Clayton
Act). Likewise, although the Clayton Act on its face requires
only an injury, the Court unanimously has construed it to
require an “antitrust injury, which is to say injury of the type
the antitrust laws were intended to prevent and that flows from
that which makes defendants’ acts unlawful.” Brunswick Corp.
v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977); see also
Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334–45
(1990); Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104,
109–13 (1986). Although the Federal Employers Liability Act
provides a cause of action to “any person suffering injury” from
the negligence of a railroad while employed by the railroad, the
Court has held that emotional harms qualify as an “injury” only
if the plaintiff fell within a zone of physical danger. Consol.
Rail Corp. v. Gottshall, 512 U.S. 532, 542–57 (1994). The
Administrative Procedure Act provides a cause of action to any
person “aggrieved” by agency action—the same word used in
Title VII’s private right of action—but the Court has held the
plaintiff must fall “within the zone of interests to be protected
or regulated by the statute or constitutional guarantee in
question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150, 153 (1970). The Court has also held that this
zone-of-interest requirement “applies to all statutorily created
causes of action,” Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 129–30 (2014), including
section 706 and its “aggrievement requirement,” Thompson v.
N. Am. Stainless, LP, 562 U.S. 170, 176–78 (2011).
Materiality and objectivity requirements, even if not
explicitly spelled out in statutory text, are also common. The
Supreme Court routinely presumes that anti-fraud statutes
require materiality. Neder v. United States, 527 U.S. 1, 21–23
15
(1999); see Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757
(7th Cir. 2009) (“Materiality is an ordinary element of any
federal claim based on a false or misleading statement.”). And
objectivity requirements follow from materiality requirements,
which focus not on the idiosyncratic reactions of an individual
plaintiff, but on the likely reactions of a reasonable person. See
TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 445 (1976)
(“[t]he question of materiality, it is universally agreed, is an
objective one”). For example, consider the Fair Debt
Collection Practices Act, which prohibits making “any false,
deceptive, or misleading representation … in connection with
the collection of any debt.” 15 U.S.C. § 1692e. Despite the
statute’s double use of the word “any,” courts widely agree that
a misrepresentation must be material to be actionable, and the
materiality standard “is an objective one.” Jensen v. Pressler
& Pressler, 791 F.3d 413, 417–22 (3d Cir. 2015); see Elyazidi
v. SunTrust Bank, 780 F.3d 227, 234 (4th Cir. 2015).
* * * *
In sum, Brown’s construction of section 703(a)(1) is amply
supported by statutory text and numerous lines of Supreme
Court precedent. Among other things, Brown honors the
background maxim of de minimis non curat lex; it harmonizes
“otherwise to discriminate against” with the other covered
adverse actions; it tracks the harassment cases’ understanding
of “terms, conditions, or privileges of employment”; it tracks
White’s construction of “discriminate against” as used in
section 704(a); and it is consistent with the courts’ general
interpretive authority to spell out the metes and bounds of
express statutory injury requirements. For these reasons,
Brown was rightly decided.
16
IV
The question presented is not simply whether Brown was
rightly decided in 1999, but whether it should be overruled
more than two decades later. The answer is clearly no.
A
“Overruling precedent is never a small matter.” Kimble v.
Marvel Ent., LLC, 576 U.S. 446, 455 (2015). According to the
Supreme Court, doing so requires a “‘special justification’—
over and above the belief ‘that the precedent was wrongly
decided.’” Id. at 455–56 (quoting Halliburton Co. v. Erica P.
John Fund, Inc., 573 U.S. 258, 266 (2014)). We too have
recognized this basic principle of stare decisis. United States
v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012) (en banc);
Critical Mass Energy Project v. NRC, 975 F.2d 871, 875–76
(D.C. Cir. 1992) (en banc). The Supreme Court further has
stressed that “stare decisis carries enhanced force” for
decisions interpreting statutes, because “Congress can correct
any mistake it sees.” Kimble, 576 U.S. at 456; see Halliburton
Co., 573 U.S. at 274; Patterson v. McLean Credit Union, 491
U.S. 164, 172–73 (1989). We too have recognized the same
principle, Burwell, 690 F.3d at 504; Critical Mass, 975 F.2d at875–76, which applies even more clearly to lower-court
decisions correctable by Congress or the Supreme Court.
An overwhelming judicial consensus counsels against
overruling Brown. When that case was decided, the authority
for its rule was already “wide and deep.” See Brown, 199 F.3d
at 455–56. Today the authority is vastly wider and deeper. As
explained above, we have applied Brown in many cases inside
and outside the job-transfer context, and our district court has
done so in scores if not hundreds more. Outside of this circuit,
the courts of appeals now unanimously agree that a plaintiff
must show objectively material harm to challenge a job transfer
17
under section 703(a)(1). See, e.g., Caraballo-Caraballo v.
Corr. Admin., 892 F.3d 53, 61 (1st Cir. 2018) (“We have
recognized on several occasions that a transfer may constitute
an adverse employment action.… However, not all transfers
will suffice.”); Williams v. R.H. Donnelley, Corp., 368 F.3d
123, 128 (2d Cir. 2004) (Sotomayor, J.) (“Williams thus must
establish that Donnelley’s denial of her request for a transfer
created a materially significant disadvantage in her working
conditions.”); Oguejiofo v. Bank of Tokyo Mitsubishi UFJ Ltd,
704 F. App’x 164, 168 (3d Cir. 2017) (plaintiff “failed to
demonstrate that the lateral transfer was sufficiently material
so as to qualify as adverse for purposes of his prima facie
case”); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,
376 (4th Cir. 2004) (reassignment is not actionable without
“some significant detrimental effect” (cleaned up)); Pegram v.
Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004) (“under
Title VII principles, an employment transfer may qualify as an
adverse employment action if the change makes the job
objectively worse” (cleaned up)); Deleon v. Kalamazoo Cnty.
Rd. Comm’n, 739 F.3d 914, 918 (6th Cir. 2014) (“a
reassignment without salary or work hour changes” is
actionable if accompanied by “a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a
particular situation” (cleaned up)); O’Neal v. City of Chicago,
392 F.3d 909, 913 (7th Cir. 2004) (“To sustain a federal
employment discrimination suit, a plaintiff must show
something more than the ordinary difficulties associated with a
job transfer.”); Ledergerber v. Stangler, 122 F.3d 1142, 1144
(8th Cir. 1997) (“A transfer involving only minor changes in
working conditions and no reduction in pay or benefits will not
constitute an adverse employment action.”); Chuang v. Univ.
of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir. 2000)
(failure to respond to grievances “did not materially affect the
compensation, terms, conditions, or privileges of the
18
[plaintiffs’] employment”); Sanchez v. Denver Pub. Schs., 164
F.3d 527, 532 n.6 (10th Cir. 1998) (“If a transfer is truly lateral
and involves no significant changes in an employee’s
conditions of employment, the fact that the employee views the
transfer either positively or negatively does not of itself render
the denial or receipt of the transfer adverse employment
action.”); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1204 n.11
(11th Cir. 2013) (“it’s a rare case where a change in
employment responsibilities qualifies as an adverse
employment action”). Moreover, “hundreds if not thousands
of decisions” have stated that an “adverse employment action,”
which is shorthand for an action with a material impact on the
terms or conditions of employment, is “essential” to making
out a prima facie case of discrimination under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Threat, 6
F.4th at 678–79; Minor v. Centocor, Inc., 457 F.3d 632, 634
(7th Cir. 2006). The sample string-cite set out above could thus
easily be expanded to go on for pages. And before today’s
decision, no contrary authority existed.
Despite this mountain of authority, Congress has
expressed no dissatisfaction with Brown or its out-of-circuit
counterparts. Since 1964, it has amended Title VII on several
occasions, including three times to overrule at least ten judicial
decisions of which it disapproved. See Lilly Ledbetter Fair Pay
Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (overruling
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618(2007)); Civil Rights Act of 1991, Pub. L. No. 102-166, 105
Stat. 1071 (overruling eight decisions, as described in Landgraf
v. USI Film Prods., 511 U.S. 244, 250–51 (1994)); Pregnancy
Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076(overruling Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976)).
The fact that “Congress has spurned multiple opportunities” to
overrule the Brown line of cases cuts against our doing so.
Kimble, 576 U.S. at 456; see Watson v. United States, 552 U.S.
1974, 82–83 (2007). To be sure, some justices have raised strong
objections to inferring acquiescence based on congressional
silence. See, e.g., Johnson v. Transp. Agency, 480 U.S. 616,
671–72 (1987) (Scalia, J., dissenting). And one astute
commentator has explained that such an inference is more
tenuous where lower-court decisions are at issue. Barrett,
Statutory Stare Decisis in the Courts of Appeals, 73 Geo.
Wash. L. Rev. 317, 331–35 (2005). But if there was ever a case
for attributing interpretive significance to congressional silence
in the face of lower-court decisions, this is it—with decades-
long unanimity, reaching into every circuit and extending over
hundreds of cases, in addressing the core provision of one of
the most visible statutes in the entire United States Code. See
Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200–01
(1974) (“continued congressional silence” has force where the
circuits had interpreted a statute with “almost perfect
consistency” for “nearly four decades”). And even attributing
no affirmative significance to congressional silence in this
case, the breadth and depth of support for Brown is itself good
reason to proceed with care.
B
My colleagues give three reasons for overruling Brown
despite all of this. None is persuasive.
1
My colleagues would overrule Brown because they view
it as “fundamentally flawed.” Ante at 16. The short answer is
that Brown is not flawed at all, much less fundamentally so.
Yet even if Brown were fundamentally flawed, that would
hardly be a sufficient ground for overruling it. As noted above,
the Supreme Court requires a “special justification” for
overruling precedent, apart from its having been wrongly
decided. See, e.g., Kimble, 576 U.S. at 455–56. Justice
20
Thomas has forcefully laid out the competing view that
precedent should be overruled, without anything more, if it is
“demonstrably erroneous.” Gamble v. United States, 139 S. Ct.
1960, 1981 (2019) (Thomas, J., concurring). But the Supreme
Court has not yet accepted this view, and so neither may we.
As mentioned, our cases have also recognized that
overruling precedent requires a “special justification” apart
from strong disagreement with the merits. Burwell, 690 F.3d
at 504; Critical Mass, 975 F.2d at 875–76. To be sure, these
same decisions, together with Allegheny Defense Project v.
FERC, 964 F.3d 1 (D.C. Cir. 2020) (en banc), suggest that
precedent may be overruled simply because it is
“fundamentally flawed.” See id. at 18. But Burwell and
Critical Mass both declined to overrule precedents. See 690
F.3d at 516; 975 F.2d at 875–77. And Allegheny overruled a
statutory precedent not only because we viewed it as wrongly
decided, but also because a later Supreme Court decision
contradicted it on the exact question presented—whether an
agency should receive deference in interpreting statutes
addressed to federal-court jurisdiction. See 964 F.3d at 18
(citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–50
(1990)). To my knowledge, our only decision overruling
circuit precedent based solely on a view that it was wrong is
Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d
1516, 1518–25 (D.C. Cir. 1988) (en banc). But the precedent
at issue there was only four years old, and it had nothing like
the breadth and depth of support for Brown. Moreover,
Cumberland Mountains can hardly be taken as itself a
persuasive precedent on precedent, for the Court’s analysis
contained not a single word about stare decisis.
My colleagues view Brown as inconsistent with the
Supreme Court’s increasing emphasis on the primacy of
statutory text. Ante at 16–17 (citing Allegheny, 964 F.3d at 18).
21
They describe this as a fundamental flaw with Brown, whereas
Allegheny had framed a similar concern as one of inconsistency
with intervening precedent. Either way, this methodological
criticism of old precedents cannot be enough to justify their
overruling. For many past decades, we were not all textualists. 3
Under the “ancien regime,” the Supreme Court often created
private rights of action with little basis in statutory text.
Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (citing J.I.
Case Co. v. Borak, 377 U.S. 426, 433 (1964)). It often looked
to legislative history before statutory text. See, e.g., Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29
(1971). And it often divined statutory “spirit” to expand or
contract statutes beyond their most natural reading, including
in a landmark decision interpreting section 703(a)(1) itself.
United Steelworkers of Am. v. Weber, 443 U.S. 193, 201 (1979)
(quoting Church of the Holy Trinity v. United States, 143 U.S.
457, 459 (1892)). In this “bygone era,” this Court likewise
followed a “more freewheeling approach to statutory
construction.” Wooden v. United States, 142 S. Ct. 1063, 1085
(2022) (Gorsuch, J., concurring in the judgment) (cleaned up).
Many of our cases recognized implied rights of action, e.g.,
Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416,
419–25 (D.C. Cir. 1992); Wachovia Bank & Tr. Co., N.A. v.
Nat’l Student Mktg. Corp., 650 F.2d 342, 353 (D.C. Cir. 1980);
relied mainly on legislative history, e.g., NRDC, Inc. v. Costle,
568 F.2d 1369, 1373 (D.C. Cir. 1977); NRDC, Inc. v. Train,
510 F.2d 692, 698–702 (D.C. Cir. 1974); or freely consulted
statutory “spirit,” e.g., Gen. Serv. Emps. Union Loc. No. 73 v.
NLRB, 578 F.2d 361, 366–67 (D.C. Cir. 1978); Manoukian v.
Tomasian, 237 F.2d 211, 213–14 (D.C. Cir. 1956). Are all such
3
Cf. Harvard Law School, The Antonin Scalia Lecture Series:
A Dialogue with Justice Elena Kagan on the Reading of Statutes,
YouTube at 08:28 (Nov. 25, 2015), https://www.youtube.
com/watch?v=dpEtszFT0Tg (“We are all textualists now.”).
22
precedents now to be overruled, either as fundamentally flawed
or as inconsistent with the New Textualism? If so, our en banc
Court will be very busy indeed.
2
My colleagues next contend that intervening cases have
substantially weakened Brown. Ante at 17. But the passage of
time has only made Brown stronger. Circuit after circuit has
followed its rule. And White strongly reinforced Brown by
construing the phrase “discriminate against” in section 704(a)
to incorporate the same objectively material injury requirement
that Brown held was present in section 703(a)(1).
My colleagues argue that White undercut Brown in a
different way. They reason that Brown invoked Ellerth as
support for requiring section 703(a)(1) plaintiffs to prove
tangible injury, whereas White later described Ellerth as
requiring such an injury only to identify when an employer is
automatically liable for the workplace harassment of a
supervisor. Ante at 8–9. Brown was imprecise in framing a
rule requiring “materially adverse consequences” producing an
“objectively tangible harm,” 199 F.3d at 457 (emphasis added),
rather than one requiring a harm that is material when viewed
objectively, the key elements that I have discussed and
defended above. But this garbling was introduced by Ellerth,
not Brown, and the misleading adjective tangible has proven
harmless in our Brown jurisprudence. Also, none of this
undercuts Brown’s invocation of Ellerth, or White’s
reinforcement of Brown.
To unpack all this, consider the sequence of relevant cases.
Before Ellerth was decided, there were already legions of cases
holding that a plaintiff challenging a job transfer as
discriminatory must prove some objectively material harm.
See, e.g., Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885
23
(6th Cir. 1996) (“reassignments without salary or work hour
changes do not ordinarily constitute adverse employment
decisions in employment discrimination claims”); Flaherty v.
Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994) (Age
Discrimination in Employment Act does not cover “changes in
duties or working conditions that cause no materially
significant disadvantage to an older employee” (cleaned up));
Crady v. Liberty Nat’l Bank & Tr. Co. of Ind., 993 F.2d 132,
136 (7th Cir. 1993) (“a materially adverse change in the terms
and conditions of employment must be more disruptive than a
mere inconvenience or an alteration of job responsibilities”);
Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th
Cir. 1994) (“Changes in duties or working conditions that cause
no materially significant disadvantage, such as Harlston’s
reassignment, are insufficient to establish the adverse conduct
required to make a prima facie case.”).
Next in the sequence came Ellerth—which did, as White
would later explain, address the question of vicarious liability.
The Court used tangible to describe the harassing acts of a
supervisor for which an employer is automatically liable—i.e.,
those fairly treated as official acts of the employer itself. 524
U.S. at 761–62. In doing so, it described the four cases cited
above as illustrating the “concept of a tangible employment
action,” and then deemed it “prudent to import the concept of
a tangible employment action for resolution of the vicarious
liability issue.” Id. at 761. Ellerth thus introduced some
confusion between “tangible” as a synonym for “material,” the
standard used in the prior cases to determine the substantive
scope of section 703(a)(1) and its analogs in other anti-
discrimination statutes, and “tangible” as shorthand for official
acts that make an employer automatically liable.
Next came Brown. First, it correctly cited the four cases
noted above (plus twelve others) for the proposition that “the
24
authority requiring a clear showing of adversity in employee
transfer decisions is both wide and deep.” 199 F.3d at 455–56.
Brown then claimed that Ellerth had “reinforced” this authority
by invoking it to “announce[] a ‘tangible employment action’
standard in cases of vicarious liability.” Id. There was nothing
wrong with this reasoning; Brown correctly summarized
Ellerth, and the Supreme Court’s extending a line of cases from
one context to another does tend to reinforce the cases. Finally,
Brown announced its “rule” that a lateral transfer is actionable
only if the employee suffers “materially adverse”
consequences producing “objectively tangible” harm. Id. at
457. In context, this formulation seems to reflect nothing more
than Ellerth’s ambiguous use of tangible. To be sure, it would
have been wrong for Brown to announce a categorical rule that
only “tangible” harms are actionable under section 703(a)(1),
for the hostile-environment cases prove otherwise. But Brown
announced no such rule. To the contrary, it carefully explained
that “[a]fter Meritor, plaintiffs could maintain an action even
in the absence of a tangible economic effect on employment,”
if they were subjected to sufficiently severe harassing conduct.
Id. at 454. The key takeaway is that Brown’s reference to
“objectively tangible” harm (as opposed to objectively material
harm) reflects some muddling from Ellerth and has had no
distorting effect on Brown’s materiality-based jurisprudence.
Last came White, which clarified that Ellerth had used the
concept of a “tangible employment action” only to decide when
an employer should be held automatically liable for the
harassment of a supervisor, without addressing other questions
under section 703(a)(1) or any question under section 704. 548
U.S. at 64–65. The clarification does not undercut Brown’s
point that Ellerth, by extending “wide and deep authority” from
the disparate-treatment context to the context of vicarious
liability for harassment, tended to strengthen that authority.
Nor does it say anything about White’s recognition of an
25
objectively material harm standard for retaliation cases, which
affirmatively reinforces Brown as explained above.
3
Finally, my colleagues contend that Brown has proven un-
administrable. Surveying the vast bulk of precedent applying
the Brown rule, they portray the relevant law as chaotic, and
the courts as speaking “with discordant voices.” Ante at 17.
My colleagues significantly overstate the extent of any
conflict. For example, they suggest that the Fifth Circuit stands
alone in requiring the plaintiff to prove an “ultimate”
employment decision. Ante at 17; see McCoy v. City of
Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (per curiam).
But the Fifth Circuit classifies transfers as actionable
demotions “if the new position proves objectively worse—such
as being less prestigious or less interesting or providing less
room for advancement.” Alvarado v. Texas Rangers, 492 F.3d
605, 612–13 (5th Cir. 2007) (cleaned up). In substance, that is
the Brown rule. My colleagues suggest that two cases from the
Seventh Circuit set the injury bar distinctively high. Ante at
18; see EEOC v. AutoZone, Inc., 860 F.3d 564 (7th Cir. 2017);
Place v. Abbott Lab’ys, 215 F.3d 803 (7th Cir. 2000). But the
Seventh Circuit recognizes that “adverse actions can come in
many shapes and sizes,” so transferring an employee to “a more
unfriendly working environment” might constitute an
actionable injury, depending on the circumstances. Place, 215
F.3d at 810 (quoting Knox v. Indiana, 93 F.3d 1327, 1334 (7th
Cir. 1996)). Likewise, my colleagues suggest that Threat,
which held that a challenged transfer to the night shift was
actionable, conflicts with other decisions rejecting challenges
to shift transfers. Ante at 18–19; see 6 F.4th at 679–80. But
Threat announced no broad rule that all shift-transfer claims
are actionable. Instead, it expressly disclaimed any such
26
“categorical rule,” because “[n]ot all shift changes are the
same.” Id. at 679. It is hardly surprising that different courts,
applying a qualitative requirement of objectively material
injury, have reached different results on different facts in
different cases. And even if there were narrow disagreements
about whether specific harms qualify as objectively material
injuries, that would hardly justify what we do today—create an
eleven-to-one split on the anterior, much broader question
whether the plaintiff must prove such an injury at all.
The administrability objection suffers from a further
problem. An inquiry into whether a transfer caused the
plaintiff an objectively material harm is precisely what White
requires for retaliation claims under section 704(a). If that
inquiry can and must be managed, then so too can the same
inquiry for disparate-treatment claims under section 703(a)(1).
Indeed, some of the cases that my colleagues invoke to show
unmanageability involve the White-mandated inquiry for
actionable injury under section 704(a). E.g., Forkkio, 306 F.3d
at 1131–32; Halcomb v. Off. of the Senate Sergeant-at-Arms,
563 F. Supp. 2d 228, 239, 245–49 (D.D.C. 2008). And in many
cases, including this one, the same acts are alleged to be both
discriminatory and retaliatory. There is no theoretical or
practical reason why we should make the materiality inquiry in
one context but not the other.
V
Finally, a few words about the breadth and consequences
of today’s decision. My colleagues acknowledge that Title VII
must not become a “general civility code” for the workplace.
Ante at 11. To that end, they limit today’s decision in some
respects: By its terms, the decision applies only to “job
transfers” as opposed to other, less significant workplace
actions. Id. at 20. My colleagues reserve whether the de
27
minimis canon narrows the range of actionable injuries under
section 703(a)(1). Id. at 8. They assure us that the “terms,
conditions, or privileges of employment” requirement can be
“reasonably construed” to weed out insubstantial claims. Id. at
11. And they remind us that the plaintiff still must prove the
employer undertook the challenged action for a prohibited
reason. Id. at 13–14. But the logic of Brown extends well
beyond transfers, and we currently have no precedent on how
to apply the de minimis canon here or how to construe the
“terms, conditions, or privileges of employment” requirement
outside the context of hostile-environment claims. Finally, the
requirements for proving discriminatory intent are both modest
and unrelated to the question whether any injury is objectively
substantial. So today’s decision may well be sweeping, and it
certainly will be destabilizing.
A
In focusing on job transfers, the decision has at least
superficial appeal. Surely in most cases, an unwanted transfer
to a new position, or the denial of a wanted transfer, will inflict
some objectively material harm on an employee. And if so,
why not simplify things by dispensing with the need to prove
an injury for this category of employment actions?
As with much in this appeal, the simplest answer is White.
The Court there recognized that cases involving “reassignment
of job duties” are very likely, as a group, to create objectively
material injuries. See 548 U.S. at 70 (“Almost every job
category involves some responsibilities and duties that are less
desirable than others.”). Yet the Court nonetheless held that
“reassignment of job duties is not automatically actionable,”
and so the requisite harm must be proven in “the circumstances
of the particular case.” Id. at 71.
28
Our own experience with Brown highlights the differences
among transfer cases. Most job-transfer plaintiffs have
suffered some objectively material injury and can readily prove
it. See, e.g., Ortiz-Diaz, 867 F.3d at 74; Pardo-Kronemann,
601 F.3d at 608; Ginger, 527 F.3d at 1344. But some plaintiffs
have suffered no such harm: one whose transfer simply cut him
out of certain meetings and e-mails, see Forkkio, 306 F.3d at
1131; another who “went from a position before the [reduction
in force] with no duties to a position after the RIF with some
duties,” see Currier, 304 F.3d at 88–89; and a third whose
transfer caused only “minor changes in work-related duties or
opportunities,” see Stewart, 275 F.3d at 1135. Other plaintiffs
allege, but cannot prove, objectively material harms. For
example, Chambers argued that the denial of her requested
transfer “resulted in lost awards and career advancement
opportunities.” 988 F.3d at 501. That would be an actionable
injury under Brown, but Chambers failed to prove the
allegation. See id. at 502. Similarly, Chambers argued that the
transfer denial forced her to remain in an “unbearable”
situation with a “disproportionate” number of cases. Id. That
might satisfy Brown if the workload difference was significant,
but Chambers failed to prove that her caseload would be any
lower in the unit to which she had sought a transfer. See id.
B
Broadening the focus, job transfers are not a distinct
category of employment actions, either legally or factually.
Legally, section 703(a)(1) covers discriminatory decisions “to
fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual” in the terms or
conditions of employment. 42 U.S.C. § 2000e-2(a)(1). So
there is no textual basis for categorically distinguishing
between transfers and anything else covered by the phrase “or
otherwise to discriminate.” Nor is there any sharp factual
29
distinction between transfers and other kinds of decisions
affecting an employee’s day-to-day work.
My colleagues confine today’s decision to cases involving
“the transfer of an employee to a new role, unit, or location.”
Ante at 5–6. But this raises its own set of line-drawing
challenges. To qualify as such a transfer, does the move have
to be permanent? If not, for how long must it last? How much
does the job have to change to constitute a “new role”? My
colleagues tell us that a transfer from selling sporting goods to
selling power tools at the same department store would qualify,
id. at 13–14, but what about a transfer from selling sports
equipment to sportswear? Or from selling hunting rifles to
pistols? Or snow skis to snowboards? Must the positions in
question be formally different, or is it enough that the employer
simply imposes a change of duties within the employee’s
current job description? If the job description stays the same
but the supervisor changes, is that a “new unit”? What if
employers broadly define the scope of a position, so that many
duties can be part of that job as opposed to a transfer? Rather
than creating this artificial distinction between transfers and
everything else, it seems simpler to ask more directly the
question that matters most—whether the change at issue has
materially harmed the employee. 4
4
My colleagues characterize transfer refusals as the “functional
equivalent” of a refusal to hire “for a particular position.” Ante at 6–
7. That is certainly a plausible characterization of many transfer
refusals, which is why plaintiffs challenging such refusals have
generally cleared the Brown hurdle. See supra at 4–5. But it does
not seem to me a plausible characterization of edge cases like, say, a
compelled or refused transfer from selling snow skis to snowboards.
As explained above, the analysis of such cases should turn on
whether the compelled or denied transfer inflicts an objectively
30
Moreover, neither the logic of Brown itself, nor the logic
of today’s opinion overruling it, can be limited to the artificial
category of job transfers. Simplifying a bit, the core argument
for Brown is that the statutory phrases “discriminate against,”
“terms, conditions, or privileges of employment,” and
“aggrieved” incorporate an objectively material injury
requirement. In overruling Brown, my colleagues reject that
proposition and reserve only the possibility of a de minimis
exception. None of these interpretive disputes turns on the
distinction between job transfers and other kinds of
employment actions. So the limitation of today’s decision to
transfers seems to me illusory on the law, on the facts, and on
my colleagues’ own reasoning.
C
If extended beyond the vague category of job transfers,
today’s decision would be revolutionary. As noted above, we
repeatedly have applied Brown to screen out cases involving
objectively insubstantial injuries alleged to flow from garden-
variety workplace assignments and interactions. See Baird,
662 F.3d at 1248 (critical comments and shouting); Douglas,
559 F.3d at 553 (failure to recommend for award); Patterson,
505 F.3d at 1298 (employee subjectively “fe[lt] undermined”
(cleaned up)); Broderick, 437 F.3d at 1233 (lost opportunity to
submit briefs “directly to a top supervisor”); Taylor, 350 F.3d
at 1292–93 (placement on performance improvement plan);
Russell, 257 F.3d at 818–19 (poor performance rating). District
judges in our circuit have applied Brown to do likewise. See,
e.g., Guillen-Perez v. District of Columbia, 415 F. Supp. 3d 50,
58 (D.D.C. 2019) (scheduling decisions, increased scrutiny,
and verbal criticism); Allen v. Napolitano, 943 F. Supp. 2d 40,
45–46 (D.D.C. 2013) (conducting meetings without an
material harm on the employee, not on how the employer formally
classifies the positions or job duties at issue.
31
employee); Hunter v. District of Columbia, 905 F. Supp. 2d
364, 374 (D.D.C. 2012) (10 days of paid administrative leave
and required fitness examination); Kelly v. Mills, 677 F. Supp.
2d 206, 221 (D.D.C. 2010) (supervisor’s failure to speak
Spanish, leave handwritten notes, or invite employee into his
office); Halcomb, 563 F. Supp. 2d at 241 (low performance
ratings and increased supervision); Hunter v. Rice, 480 F.
Supp. 2d 125, 132–33 (D.D.C. 2007) (refusing to increase
signing authority for grants); Edwards v. EPA, 456 F. Supp. 2d
72, 85 (D.D.C. 2006) (denial of single training or travel
opportunity); Rhodes v. Chertoff, Civ. A. No. 04-1715, 2005
WL 3273566, at *6 (D.D.C. Aug. 4, 2005) (oral counseling for
poor performance); Moncrief v. Daro Realty, Inc., Civ. A. No.
03-762, 2005 WL 1119794, at *11 (D.D.C. Apr. 28, 2005)
(failure to provide company cell phone); Dobbs v. Roche, 329
F. Supp. 2d 33, 42 (D.D.C. 2004) (change in duties over three-
month transition period); Brodetski v. Duffey, 141 F. Supp. 2d
35, 45 (D.D.C. 2001) (uneven workload distribution). At oral
argument, we discussed hypotheticals involving everything
from coffee duty to the assignment of offices with windows.
These are just some of the ordinary workplace snubs that
Brown and White would screen out as “petty slights or minor
annoyances that often take place at work and that all employees
experience.” White, 548 U.S. at 68. Yet now, they all may
support litigation under Title VII and various similarly worded
statutes such as the ADEA and the Americans with Disabilities
Act. See Brown, 199 F.3d at 456 n.10. 5 Even with Brown in
5
My colleagues invoke the very different hypothetical of an
employer hosting a weekly doughnut day and hanging a “whites
only” sign over the doughnuts. Ante at 13. Although evocative, this
one is unrelated to any case decided under Brown. And for good
reason: Such an employer would violate section 703(a)(1), which
prohibits “the practice of creating a working environment heavily
32
place, employees annually file more than 60,000 charges with
the EEOC and more than 10,000 discrimination cases in court.
U.S. District Courts—Civil Cases Commenced, by Basis of
Jurisdiction and Nature of Suit, U.S. Courts (Dec. 31, 2021);
EEOC, Charge Statistics FY 1997 Through FY 2021. Without
a meaningful injury requirement, who knows how much those
numbers will increase?
The requirement to prove discriminatory intent will not
solve this problem. Bad intent is easy to allege, and intent is
much harder to assess early on than is the question whether an
alleged injury is objectively material. Consider the familiar
doctrines governing proof of intent. At the pleading stage, a
Title VII plaintiff need not even allege a prima facie case.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). On a
motion to dismiss, the court must accept the truth of all factual
allegations, and the inference of bad intent need only be
“plausible”—a modest standard falling well short of more
likely than not. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
After the motion-to-dismiss stage, the burden-shifting
framework of McDonnell Douglas complicates things even
more. Under that framework, the “burden of establishing a
prima facie case of disparate treatment is not onerous.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
And once an employee carries this burden, the employer will
lose the case—as a matter of law—unless it can produce
evidence of a “legitimate, nondiscriminatory reason” for its
action. Id. at 254. This framework is sensible enough for
assessing the intent behind significant actions such as hiring or
firing, which employers can reasonably be expected to
document with care. But for claims that Brown would have
screened out as immaterial, this is highly unrealistic. Must an
charged with ethnic or racial discrimination.” Meritor, 477 U.S. at
66 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).
33
employer really document the reasons for every workplace
interaction from temporary assignments to scheduling
decisions? How can an employer possibly reconstruct, in
litigation months if not years after the fact, the “legitimate,
nondiscriminatory reason” for any such miniscule decision?
And because intent is often hard to prove or disprove, a
frustrated employee might as well take his chances in litigation.
A screen for objectively insubstantial injury is thus necessary
to keep Title VII claims within manageable limits.
To close the floodgates, my colleagues stress that not all
workplace interactions involve terms, conditions, or privileges
of employment, and they dangle the possibility that de minimis
injuries may not be actionable in any event. But precisely
because we have screened out objectively insubstantial claims
under Brown for more than two decades, we have not had
occasion to build up, in this context, a jurisprudence directly
resting on de minimis non curat lex. Likewise, our extant
caselaw has imposed limits on what counts as terms,
conditions, or privileges of employment only in the specific
context of hostile-environment claims. So what happens next,
as courts in non-transfer cases are confronted with claims that
Brown would have screened out for lack of an objectively
material injury? Instead of saying “the injury is not actionable
under Brown,” may a judge instead simply say “the injury is de
minimis under Wisconsin v. Wrigley” or “the injury is not
substantial enough to affect a condition of employment”?
Automatically exporting Brown standards to either context
would seem in tension with the spirit if not the letter of today’s
opinion, which does not confirm even the existence of a de
minimis exception. But preventing the export of Brown
standards to either context would negate my colleagues’
promise of manageable limits. And leaving everything to be
decided afresh, under a new de minimis jurisprudence or a new,
non-harassment terms-and-conditions jurisprudence, would
34
eliminate two decades of judicial experience in distinguishing
substantial harms from insubstantial ones.
Why create this degree of uncertainty? My colleagues
worry that Brown has screened out too much. Yet as shown
above, it has screened out relatively few claims arising from
clear job transfers as opposed to lesser kinds of employment
actions. Perhaps, as my colleagues assert, some job-transfer
cases have applied Brown too stringently. Ante at 8. But any
such cases are the exception, not the rule. Rather than
jettisoning two decades of our Title VII jurisprudence and
starting over from scratch, I would have simply reminded the
courts that the requirement of an objectively material injury,
although important, is not especially onerous.
VI
The Court badly errs in overruling Brown, and so I
respectfully dissent.