On June 3, 2022, the full court of the U.S. Court of Appeals for the District of Columbia overturned long-standing precedent regarding the burden of proof a plaintiff must carry in pursuing a Title VII Claim. In Chambers v. District of Columbia (D.C. Cir. 2022), the D. C. Circuit held in a 9-3 en banc decision that when an employer transfers an employee or denies an employee’s request for a transfer because of the employee’s race, color, religion, sex, or national origin, the employer violates Title VII by discriminating against the employee in his or her “terms, conditions, or privileges” of employment. The court’s opinion overruled a nearly 24-year old precedent that held the denial or forced acceptance of a job transfer is actionable only if an employee suffers “objectively tangible harm.” See Brown v. Brody (D.C. Cir. 1999). The court’s decision could have sweeping effects on Title VII litigation throughout the country, as the diminished burden of proof is significantly more plaintiff-friendly and causes concern for employers when evaluating job transfers and potentially other employment actions.
The plaintiff worked in the Attorney General’s office in the District of Columbia for more than two decades as a clerk, Support Enforcement Specialist, and investigator. She requested several transfers to other units in the Attorney General’s office after complaining that she had a much larger caseload than her comparators. All of her transfer requests were denied, and she ultimately filed an EEOC charge and a lawsuit in 2014 alleging sex discrimination and retaliation.
The district court relied on Brown in granting the District of Columbia’s motion for summary judgement. On appeal, a three-judge panel of the D.C. Circuit upheld the district court’ ruling. However, two of the three judges highlighted that Title VII does not make any reference to “objectively tangible harm” and requested the full court to further review the matter.
The D.C. Circuit, in common with many other federal courts, has long imposed this tangible harm requirement articulated in Brown because of the view that Title VII is not a general “civility code” and that employees challenging discriminatory decisions should show more than de minimis harm lest courts be involved in supervising myriad routine business decisions. However, the en banc panel overruled Brown – holding that the refusal of a transfer request for one employee while granting similar requests to a similarly situated co-worker on the basis of a protected trait is discriminatory because it “deprives the employee of a job opportunity.”
The D.C. Circuit explained that the reasoning in Brown was flawed because it arose from policy concerns as opposed to the plain language of Title VII. Furthermore, the Supreme Court had subsequently ruled, seven years after Brown, that the showing of “tangible harm” was only appliable to a small subset of hostile work environment cases involving vicarious liability for a supervisor’s conduct.
Impact of D.C. Circuit Opinion
Following the D.C. Circuit’s opinion in Brown, four other Circuit Courts adopted that reasoning. However, the stage has been set for other Circuit’s to overturn the “objectively tangible harm” standard and perhaps set the stage for review by the Supreme Court. Three judges dissented from the majority opinion on the basis that the new standard throws the law into disarray, and the delineation of what constitutes “terms and conditions of employment,” as employees can now potentially sue for de minimis injuries.
More importantly, although the opinion was formally limited to job transfer cases, the decision will have sweeping repercussions in all types of Title VII claims. The tangible harm standard had been the basis of dismissal for countless cases over the past 20 plus years that would be actionable today in the District of Columbia. The new rule that discriminatory transfer decisions are actionable under Title VII will also apply to claims under the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). It will also be important to what extent this new standard will attempt to be applied in other employment actions, such as the claims involving reassignment to a different work shift, placing an employee on a performance improvement plan, or issuing a negative performance review.
Ultimately, the Chambers decision will require employers to engage in a careful analysis when considering such transfers. A disgruntled employee will only need to demonstrate that they were disadvantaged in some way in comparison to other similarly situated employees. Thus, employers should analyze any potential disadvantage an employee may experience when evaluating a job transfer and be sure to document the legitimate, non-discriminatory business reason for denying any such request.