Rejecting Tangible Harm: The Case Against Harm Requirements in Title VII Lateral Transfer Actions

by Adam Drapcho, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on an individual’s race, color, religion, sex, or national origin.¹ Curiously though, a number of circuit courts have placed an extra hurdle in front of employees attempting to bring a claim under Title VII for certain types of job transfer cases.² In employment discrimination claims involving lateral job transfers or rejections of lateral job transfers, some courts have required an employee to show that they suffered a threshold level of harm.³ Employees who could not show that their discriminatory transfer decision resulted in “objectively tangible harm” were unable to bring a valid claim against an employer, leaving employees defenseless against discriminatory job transfer decisions.⁴

In the 2022 case, Chambers v. Dist. of Columbia, the D.C. Circuit did away with the “objectively tangible harm” requirement and ruled that transfer decisions based on an employee’s protected trait violates Title VII.⁵ The decision removes a judicially created roadblock that has prevented employees from protecting themselves against discrimination in job transfers. This article will argue that the Supreme Court should adopt the Chambers holding to implement the intent behind Title VII, give employees a cause of action to protect themselves from discriminatory transfer decisions, and set a uniform rule for the circuit courts to follow. Part II of this article begins with a background of the “objectively tangible harm” standard and the D.C. Circuit’s decision to overrule it in Chambers. Part III will then argue that the Chambers rule should be embraced based on the plain language of Title VII and the inherent harm in having a transfer decision made on a discriminatory basis, followed by a brief conclusion in Part IV.

II. Background

A. The Harm Requirement

At the time that the D.C. Circuit Court first considered the issue of discriminatory transfer decisions with Brown v. Brody in 1999, the general jurisprudential trend pointed toward restricting Title VII claims by requiring plaintiffs to show that they suffered harm.⁶ In the 1996 case Williams v. Bristol-Myers Squibb Co., Judge Richard Posner provided a pithy summation of the prevailing view that was sweeping the courts. In holding that lateral transfers cannot be an adverse employment action needed to bring a Title VII claim, he quipped that deciding otherwise would mean that “every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.”⁷ Posner, and other courts that would soon adopt a similar rule, believed that Title VII would be used to litigate minor disagreements employees had with their employers if there was no additional screening mechanism for courts to apply to transfer disputes.⁸ Judge Posner’s slippery slope logic became an influential opinion that quickly spread across the circuit courts, and the D.C. Circuit was not immune.⁹

Following in the footsteps of Williams, the D.C. Circuit Court decided Brown v. Brody and set its own standard on the minimum level of harm an employee must prove when alleging a discriminatory transfer decision. The D.C. Circuit Court erected its own barrier to transfer decision claims under Title VII by requiring that an employee, who was laterally transferred or had a lateral transfer request denied, prove that she suffered an “objectively tangible harm” as a result.¹⁰ This new requirement meant that employers were able to transfer employees based on race, color, religion, sex or national origin, so long as the employee’s new position had the same compensation and duties as the previous one.

After Williams and Brown, other circuits followed suit and fabricated their own versions of a minimum level of harm requirement, but the variation in standards created inconsistency between circuits.¹¹ Some circuits implemented harm requirements that were so difficult to prove that they essentially eliminated lateral discriminatory transfer claims.¹² Still, other circuits set the bar so low for the level of harm required that employees simply had to show that the harm suffered was not trivial.¹³ Because the minimum level of harm requirement was not in Title VII itself, the judicially created standard produced wildly different outcomes depending on the jurisdiction. In the June 2022 Chambers decision, the D.C. Circuit finally did away with the “open-ended requirement” it set in Brown and tossed its “objectively tangible harm” standard.¹⁴

B. The Chambers Decision

Mary Chambers worked for the Child Support Services Division of the D.C. Attorney General’s Office.¹⁵ Feeling like she was overworked and given too large of a caseload, she requested multiple transfers.¹⁶ Her requests were all denied, yet similarly situated male employees were allowed to transfer to other departments.¹⁷ As a result, Chambers filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was discriminated against because of her sex.¹⁸ Her case ran headfirst into the “objectively tangible harm” requirement that controlled these types of claims in the D.C. Circuit and her employer was awarded summary judgement.¹⁹ However, Chambers’s case was revived when the Circuit decided to rehear it en banc, and the court rejected Posner’s logic that was adopted in Brown.²⁰

Because the text of Title VII makes no mention of a baseline level of harm, the court concluded that the “objectively tangible harm” requirement frustrated the intent of Title VII.²¹ The court wrote that the “objectively tangible harm” requirement was screening out more than frivolous claims – it was blocking legitimate claims of discrimination.²² The court further criticized the idea that removing the Brown rule would turn Title VII from an antidiscrimination statute to a workplace civility statute by pointing out that common sense prevents this outcome.²³ It is unlikely that reasonable judges would see Title VII’s language prohibiting employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment” and conclude that any perceived slight would be grounds for a lawsuit.²⁴ Title VII’s language itself states that any claim must be related to the compensation, terms, conditions, or privileges of employment.

Removing the “objectively tangible harm” standard simply places discriminatory job transfer decisions on the same playing field as other Title VII employment discrimination claims.²⁵ In the next section, this article will argue why the Chambers holding should be adopted by the Supreme Court by expanding on the arguments made by the D.C. Circuit and rejecting the “objectively tangible harm” rule’s implication that many discriminatory job transfers are essentially harmless.

III. Discussion

Chambers should be endorsed by the Supreme Court or adopted by other circuits on their own accord. The additional harm requirement adds what amounts to a judicially created amendment to the plain text of Title VII while dismissing the inherent harm that results from any level of employment discrimination. The requirement allows certain types of discrimination to fly under the judicial radar, leaving employees exposed to unfair treatment without a legal cause of action. The Chambers rule is also simpler to administer and prevents courts from wrestling with the question regarding what level of harm satisfies the created requirement.

As the Chambers court pointed out in its opinion, the plainest argument for scrapping the requirement is that it is nowhere to be found in Title VII’s plain text.²⁶ Congress did not make any distinctions between “harmful” or “unharmful” forms of discrimination; the legislation simply prohibits employers from discriminating against their employees.²⁷ If Congress had intended the statute to include a harm requirement, it would have mentioned so in the statute. Instead, Congress was conspicuously silent on the degree of harm an employee must endure to qualify for Title VII’s protections. Congress providing vague statutory language and courts interpreting this language to fit legal standards is a natural component of the legal system. Title VII does not require this interpretation, as the language provides no opaqueness for courts to latch onto.²⁸ The only way to read the language is on its face: Title VII was meant to defend against “all discrimination with respect to terms and conditions of employment.”²⁹ Adding a requirement to show some base level of perceived harm offends the very nature of the law.

The harm requirement also implies that there is such thing as “harmless discrimination.” To give a hypothetical, imagine an employee who moved to the United States from Mexico. She worked in an office in downtown Cincinnati and was transferred against her wishes to a new location in the suburbs, which is the same position with the same salary, benefits, and job responsibilities. The employee later heard from some friends at her old location that her boss had made comments about being “happy to have someone from this country” in her former position and that he no longer has to “listen to any funny accents.” The employee brings a Title VII claim against her employer for employment discrimination, alleging that her former boss transferred her based on her national origin. Does the employee meet the minimum level of harm required in some circuits to bring a Title VII claim based on her transfer?

Though it would seem cruel, under a standard such as Brown she would not have a case.³⁰ Because she still has the same job title and compensation, she would not be able to prove that she suffered an objectively tangible harm. This is likely not the intent behind a statute created to eliminate employment discrimination. Surely this scenario is not simply a “trivial personnel action” that Judge Posner feared would consume the courts, nor is it a “[m]ere idiosyncrac[y] of personal preference” to ask for recourse when transferred under discriminatory circumstances.³¹ Yet the harm requirements promulgated by different circuit courts have belittled the inherent harm that arises from discriminatory situations like this hypothetical.

Even if an employee does not suffer monetary injury from discrimination, the effects of discrimination can be severe. The stress and trauma of discrimination can lead to an increased risk in health issues such as anxiety, depression, and alcohol and drug abuse.³² Often, the courts focus so heavily on monetary issues involved in employment discrimination that they become somewhat blind to the human side of the issue. Harm requirements callously ignore the mental hardship involved in discriminatory transfer situations. Not only are employees who experience these situations dealing with stress from discrimination, but they are also either transferred to or forced to stay in a job that they are unhappy with due to a protected trait. The burden that proving harm places on employees can lead to serious health outcomes, yet jurisdictions that impose the requirement are unconcerned with these serious ramifications.³³ The Supreme Court adopting Chambers would legitimize this overlooked consequence of the harm requirement and provide employees with a legal tool to hold employers accountable for discriminatory transfers.

IV. Conclusion

Title VII’s plain language flatly prohibits employment discrimination.³⁴ There is no suggestion that an employee must suffer an arbitrary degree of harm to be entitled to the statute’s protections, yet that has not stopped many courts from requiring employees to show harm in discriminatory transfer claims. These requirements coldly ignore the inherent hardships caused by discrimination and leave employees without any recourse from discriminatory transfer decisions. Chambers took a step in the right direction by removing the artificial harm requirement for the D.C. Circuit; now it is time for the Supreme Court to restore the plain rule put forth in Title VII and prevent employers from using the requirement as a shield for discriminatory transfer decisions by giving employees a cause of action to protect themselves.³⁵

Cover Photo by Jesse Collins on Unsplash

Adam Drapcho

Adam Drapcho is a Citations Editor for the 2023-2024 academic year. After working for the City of Cincinnati's Law Department, the Cincinnati Public School’s Office of General Counsel, and Lazarus & Lawson, he is interested in labor and employment law and government law. In his free time, Adam likes to root on the Cleveland Guardians, Ohio State Buckeyes, and Cincinnati Bearcats.

References

1
42 U.S.C. § 2000e-2.
2
See, e.g., Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996); Burger v. Cent. Apt. Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999); Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021).
3
Id.
4
Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999).
5
Chambers v. Dist. of Columbia, 35 F.4th 870, 872 (D.C. Cir. 2022).
6
Brown, 199 F.3d at 455-56.
7
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996).
8
See Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996); Ledergerber v. Stangler 122 F.3d 1142, 1144 (8th Cir. 1997); Burger v. Cent. Apt. Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999).
9
Chambers, 45 F.4th at 872.
10
Brown, 199 F.3d at 457.
11
Chambers, 45 F.4th at 880.
12
Burger v. Cent. Apt. Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999).
13
Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021).
14
Chambers, 45 F.4th at 879.
15
Chambers v. Dist. of Columbia, 389 F.Supp.3d 77, 81 (D.D.C. 2019).
16
Id.
17
Id.
18
Id. at 82.
19
Id. at 92-94.
20
Chambers, 45 F.4th at 874-75.
21
Id.
22
Id. at 875.
23
Id. at 877.
24
42 U.S.C. § 2000e-2.
25
Chambers, 45 F.4th at 875.
26
Chambers, 45 F.4th at 874-75; See 42 U.S.C. §2000e-2.
27
Chambers, 45 F.4th at 874.
28
See Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1753 (2020) (stating that courts should neither add to nor detract from statutes).
29
Id.
30
See Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999).
31
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996); Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999).
32
Dan Gordon, Discrimination Can Be Harmful to Your Mental Health, UCLA Newsroom (Jan. 13, 2016), https://newsroom.ucla.edu/stories/discrimination-can-be-harmful-to-your-mental-health.
33
Id.
34
42 U.S.C. § 2000e-2.
35
Chambers v. Dist. of Columbia, 35 F.4th 870, 872 (D.C. Cir. 2022).