?Takeaway: In assessing potential risk in connection with staffing decisions, human resource professionals often consider whether a particular action was “material” for purposes of creating exposure to claims under Title VII of the Civil Rights Act of 1964. However, in many jurisdictions, the law has evolved to the point that prior staffing actions that were previously not actionable under Title VII may now create significant risk. HR professionals should be familiar with the state of the law regarding this issue in those jurisdictions in which they have employees. Further, given the uncertainty created by recent decisions related to the type of harm that is actionable under Title VII, the U.S. Supreme Court might eventually resolve this issue and provide greater clarity to employers.
?The U.S. Court of Appeals for the District of Columbia Circuit ruled that the denial of a job transfer can support a claim under Title VII of the Civil Rights Act of 1964, overturning precedent and highlighting evolution in case law.
In Chambers v. District of Columbia, the D.C. Circuit found that a plaintiff’s allegations that her employer failed to provide her with a requested transfer constituted actionable harm under Title VII and thus could form the basis of a claim of discrimination.
The plaintiff worked in the District of Columbia’s Office of the Attorney General for more than 20 years in various roles. During her employment, she complained of a heavy caseload and made multiple requests for transfers within the office. After the requests were denied, the plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission, alleging sex discrimination based on her contention that similarly situated male employees had been granted transfer requests. She subsequently filed suit in the U.S. District Court for the District of Columbia.
Applying D.C. Circuit precedent, the district court concluded that even if the plaintiff could establish that the defendant denied her the requested transfers because of her sex, she did not suffer an “objectively tangible harm.” Accordingly, the district court found that the plaintiff could not succeed on her Title VII claim and dismissed the case on summary judgment. The plaintiff appealed the decision to the D.C. Circuit.
As background, the D.C. Circuit generally assigns a panel of judges to hear appeals from the U.S. District Court for the District of Columbia. Unsuccessful parties may then request a rehearing “en banc,” or a hearing in which all eligible judges of the circuit decide the case.
Initially, a panel of judges from the D.C. Circuit upheld the district court’s ruling. In doing so, the panel noted that relevant precedent issued by the circuit court limited its ability to reach a different conclusion, in that such precedent required that a plaintiff establish “tangible” harm. In this regard, job transfers that do not include an economic component did not satisfy this threshold.
However, recognizing that the D.C. Circuit’s precedent was inconsistent with the language and objectives of Title VII, the judges encouraged an en banc rehearing to determine whether it would be appropriate to overrule its precedent that led to the dismissal of the plaintiff’s claims. In suggesting an en banc hearing, the initial panel of judges noted that while circuit precedent required dismissal of the plaintiff’s case, the text of Title VII “makes no reference to ‘objectively tangible harm’ or any similar requirement.” The D.C. Circuit granted the plaintiff’s request for a hearing before all the court’s judges.
The full D.C. Circuit began by examining the plain text of Title VII, noting that the phrase “terms, conditions, or privileges of employment” appears to be extremely broad. While the court recognized that not every staffing action that occurs in the workplace impacts an employee’s terms, conditions or privileges of employment, the denial of a lateral transfer based on sex was indeed the type of employment action intended by Congress for Title VII to address.
Next, the court observed that the phrase “discrimination” within the text of Title VII does not distinguish between “economic” and “noneconomic” discrimination, nor between “tangible” and “intangible” discrimination. Returning to the D.C. Circuit precedent requiring “objectively tangible harm,” the court concluded that the plain text of Title VII simply does not support such an interpretation.
The court then analyzed the employer’s assertion that as a principle of statutory construction, Title VII should not be interpreted to include “de minimis” harms. While the circuit court recognized other circuit precedent that held that Title VII is not designed to include harms such as public humiliation and loss of reputation, it also noted that its own precedent had the effect of precluding much more than minor harms. Interestingly, however, the court did not affirm the notion that Title VII does not cover any and all harms in the workplace, merely stating that “we need not decide today whether Title VII includes a de minimis exception.”
Hamilton v. Dallas County
In August, the 5th U.S. Circuit Court of Appeals confronted a similar legal question in Hamilton v. Dallas Co. In Hamilton, a group of female detention officers filed suit against their county employer, alleging that a gender-based scheduling policy relating to days off based on safety considerations violated Title VII. The U.S. District Court for the Northern District of Texas dismissed the plaintiffs’ case at the pleading stage, finding that under 5th Circuit precedent, they had not pleaded “adverse employment action” that could sustain a claim under Title VII.
In analyzing the plaintiffs’ claim, the 5th Circuit began by noting that “the conduct complained of here fits squarely within the ambit of Title VII’s proscribed conduct: discrimination with respect to the terms, conditions, or privileges of one’s employment because of one’s sex,” and that “[g]iven the generally accepted meaning of those terms, the [c]ounty would appear to have violated Title VII.”
However, the 5th Circuit further explained that it was bound by its own precedent that required that a plaintiff establish an “ultimate employment decision” (for example, hiring, firing, promotion and compensation) to state a Title VII discrimination claim. As a result, the circuit court affirmed the district court’s dismissal of the plaintiffs’ case. Notably, in reaching its decision, the 5th Circuit referenced the D.C. Circuit’s decision in Chambers, as well as other circuit court decisions that yielded a different result. The 5th Circuit further observed that the case before it was “an ideal vehicle for the [5th Circuit] en banc court to re-examine our ultimate-employment-decision requirement and harmonize our case law with our sister circuits’ to achieve fidelity to the text of Title VII.”
In accordance with the circuit court’s suggestion, a petition for rehearing before the entire 5th Circuit was granted. While the outcome is still pending, it certainly seems that the 5th Circuit may very well abandon the need for a plaintiff to establish an “ultimate employment decision” to state a viable claim for discrimination under Title VII.
Chambers v. District of Columbia, D.C. Cir., No. 19-7098 (June 3, 2022).
Hamilton v. Dallas Co., 5th Cir., No. 21-10133 (Aug. 3, 2022), rehearing granted (Oct. 12, 2022).
Jonathan E. O’Connell, SHRM-SCP, is a lawyer with Odin, Feldman & Pittleman PC in Reston, Va., and focuses his practice on counseling small and midsize private employers and nonprofits with respect to labor and employment matters.
