Executive Summary: On June 3, 2022, an en banc panel (meaning all of the judges on the court participated) of the U.S. Court of Appeals for the D.C. Circuit issued a landmark decision holding that Title VII does not require employees to demonstrate an “objectively tangible harm.” Chambers v. District of Columbia (D.C. Cir. 2022) (en banc). The D.C. Circuit had held in 1999 that the denial or forced acceptance of a job transfer is actionable under Title VII only if the employee suffered “objectively tangible harm.” Brown v. Brody (D.C. Cir. 1999) (“Brown”). The D.C. Circuit in Chambers overruled its own holding in Brown, concluding that intervening Supreme Court authority severely undermined that holding. Instead, the D.C. Circuit held that forced transfers or the denial of requested transfers because of the employee’s race, color, religion, sex, or national origin violate Title VII by discriminating against the employee with respect to the “terms, conditions, or privileges of employment.”
The Case: Plaintiff Mary Chambers worked in the Attorney General’s office in D.C. for more than twenty years as a clerk and later as a Support Enforcement Specialist and investigator. Chambers complained that she had a larger caseload that her comparators and requested numerous transfers to other units in the agency. Each transfer request was denied. She filed an EEOC charge and ultimately initiated this lawsuit in 2014, alleging discrimination and retaliation on the basis of sex.
The District Court, applying Brown, granted the District of Columbia’s motion for summary judgment. A three-judge panel of the D.C. Circuit affirmed with two judges noting that Title VII makes no reference to “objectively tangible harm” and urging the full court to review the matter. In a sharply divided opinion, the full panel of the D.C. Circuit overruled Brown.
The D.C. Circuit’s Reasoning: Title VII proscribes discrimination with respect to an employee’s “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The Circuit framed the question as follows: when an employer denies an employee’s request for a transfer based on her sex (or other protected characteristic), is this discrimination which affects the “terms, conditions, or privileges of employment?” The court emphatically answered “yes.”
The Circuit wrote that refusing a request for a transfer for one employee while granting a similar request to a similarly situated co-worker on the basis of a protected characteristic is discriminatory because the denial “deprives the employee of a job opportunity.” The Circuit continued, “[o]nce 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.”
Brown’s requirement of a showing of “objectively tangible harm” was not grounded in the plain language of Title VII. Instead, the Brown court based its determination on “the clear trend of authority” of other circuits and the Supreme Court. But the Circuit Court found that the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White (“White”), definitively put that notion to rest. White held that past Court decisions which referenced a “tangible employment action” were inapposite because they arose in vastly different contexts. White held that the Court’s past precedents did not discuss that requirement in the context of Title VII’s general antidiscrimination provision. Rather, the precedents were applicable only to a slice of cases where employers could be held vicariously liable in for a hostile work environment because of the acts of its supervisors. “After White,” the Circuit Court wrote, “no basis remains for thinking [prior precedent] supports, even implicitly, the approach adopted in Brown.”
One last issue remained: that of stare decisis, or as the Circuit Court put it, “the idea that today’s court should stand by yesterday’s decisions.” The Court noted that stare decisis applies less forcefully for circuit courts because their precedent is chiefly decided by three-judge panels. According to the Circuit Court, there are two primary reasons for an en banc panel to overrule circuit precedent: first, if it decides that a three-judge panel’s holding on an important issue of law was fundamentally flawed; and second, if the court finds that intervening developments in the law—i.e., Supreme Court decisions—have removed or weakened the underpinnings of a prior decision. The Circuit found both reasons supported overruling Brown.
The Circuit found that Brown was fundamentally flawed because it was not based on the text of Title VII, but rather emanated from policy concerns. The court quoted then-Judge Kavanaugh leading the chorus for the overruling of Brown in 2017 because it was out of step with the straightforward meaning of Title VII. Second, White was decided seven years after Brown, and clarified that prior Court precedent required a showing of tangible harm only in a subset of hostile work environment cases involving vicarious liability.
Concluding, the court thus overruled Brown because it lacked “any footing in the text of Title VII or Supreme Court precedent.”
Employer’s Bottom Line: Four other Circuit Courts adopted the precedent set by the D.C. Circuit in Brown. The D.C. Circuit’s reversal of its own 1999 precedent-setting decision in Brown will either set the stage for a reversal of precedent across Circuits or a Supreme Court showdown. In the meantime, Brown has immediate implications.
Daily employers are faced with employee requests for lateral transfers and a myriad of other demands that, if denied, will not result in any material harm. But, Chambers makes clear that harm is in the eye of the beholder and the only view that matters is that of the employee. Plaintiffs need only articulate that they were disadvantaged, even in some minor way, to survive a motion to dismiss. Going forward, when denying an employee request, it is critical that employers consider any potential disadvantage the employee may experience and document, in real time, the non-discriminatory business reason for denying the request.
If you have any questions regarding this Alert, please contact the authors, Consuela A. Pinto, partner in our Washington, DC office at cpinto@fordharrison.com, or Jeff Shooman, counsel in our New York City, NY and Berkeley Heights, NJ, offices at jshooman@fordharrison.com.