D.C. Circuit Allows for Title VII Liability Without Any Tangible Harm
The U.S. Court of Appeals for the District of Columbia Circuit recently issued a decision that overturned over 20 years of law regarding the type of employment action that is compensable under Title VII of the Civil Rights Act of 1964. This decision could have implications across the country, as other district courts and appellate courts have followed the same authority, which has since been overruled.
Some History on Title VII Cases
In 1999, the D.C. Circuit decided Brown v. Brody, which in essence held that “the 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.’’’
The rule said that a party who was either forced to accept a lateral transfer or denied a lateral transfer, couldn’t file a claim under Title VII unless the transfer had a material impact on their job or compensation (such as an impact or change to their compensation, conditions of employment, or tangible changes to their future employment opportunities). The decision in this case was cited by other courts across the country, including the 3rd, 6th, and 7th Circuits.
D.C. Circuit Issues a New Decision
On June 3, 2022, the D.C. Circuit issued a decision that overruled Brown. Mary Chambers worked in D.C.’s Office of the Attorney General for more than 20 years in various positions. She sought different positions within the office after complaining of being assigned a larger caseload than her colleagues, but her requests were denied.
Chambers filed a sexual discrimination complaint with the Equal Employment Opportunity Commission (EEOC), asserting that her male colleagues’ transfer requests had all been granted, while her request had been denied. After pursuing the complaint with the EEOC, she filed a federal suit against her employer under Title VII.
The district court granted summary judgment (dismissal without a trial) in favor of the employer and held that, even if the denial of transfer requests was motivated by discrimination, Chambers had not suffered any “objectively tangible harm.” The D.C. Circuit initially affirmed the district court’s decision but, after a hearing by the entire panel, issued a decision reversing the district court and overruling Brown.
The decision in this case rested upon the language of Title VII to overrule Brown. It noted that nothing in Title VII textually supported the court’s prior conclusion that “objectively tangible harm” was required to support a claim.
Rather, the language of Title VII simply requires a finding 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” to impose liability. The court criticized the prior decision, noting that its additional requirement of an “objectively tangible harm” was a “judicial gloss that lacks any textual support.” It also confirmed that a job transfer refusal was not a de minimis (a small amount of) harm because such denial is essentially refusing to hire an employee, which is itself actionable under Title VII.
The holding in Chambers now clearly establishes that discriminatory transfers, or denials of transfers, which may not tangibly affect an employee’s compensation, aren’t categorically barred from supporting a Title VII claim. That holding is, however, currently only binding precedent for the district courts within the D.C. Circuit.
Other federal appellate courts (which had previously relied on Brown) could revisit the issue of discriminatory transfers and still determine that claims based upon such actions don’t give rise to claims under Title VII. It’s possible, however, that other circuits that followed Brown will follow this new decision and begin allowing such claims. Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022).
For employers, the implications of the decision include expanding potential liability for allegedly discriminatory employment actions, even when an action may not tangibly affect an employee’s compensation or benefits. While Wisconsin is generally an at-will state for most employees, employers are best served by disciplining or terminating employees only where there is a legitimate nondiscriminatory reason for doing so.
As always, you should focus on documenting employment decisions (in the event any decision is challenged later in court) and should consult with legal counsel prior to making employment decisions that could raise concerns under Title VII or any other applicable local, state, or federal laws.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.