Chambers v. Dist. of Columbia

35 F.4th 870

Mary E. CHAMBERS, Appellant

v.DISTRICT OF COLUMBIA, Appellee

No. 19-7098

United States Court of Appeals, District of Columbia Circuit.

Argued October 26, 2021

Decided June 3, 2022

Brian Wolfman, Washington, DC, 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, Reston, VA, and Carolyn L. Wheeler, Washington, DC, were on the brief for amicus curiae Metropolitan Washington Employment Lawyers Association in support of appellant.

Elizabeth B. Wydra, San Francisco, CA, 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, Washington, DC, 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 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 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 (D.C. Cir. 1999). 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 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.

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, 132 S.Ct. 1997, 182 L.Ed.2d 903 (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, 106 S.Ct. 2399, 91 L.Ed.2d 49 (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 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, 125 S.Ct. 1497, 161 L.Ed.2d 361 (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, 106 S.Ct. 2399. Nor does the statute distinguish between "subtle" or "overt" discrimination. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 801, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ; see also Bostock v. Clayton County , ––– U.S. ––––, 140 S. Ct. 1731, 1740, 207 L.Ed.2d 218 (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 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...