September 27, 2022

Volume XII, Number 270

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September 26, 2022

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The Transfer-mers: D.C. Circuit Rules That Job Transfers Covered by Title VII Without Higher Bar

Let’s say you are tired of your current position and want to try something new with the same employer. You apply for a job transfer, and you are turned down. Then you find out that other people were able to make the move more easily. If those other people are of a different race or sex or other protected classification, can you file a discrimination claim under Title VII? In the past, in some Circuits, you couldn’t do it unless you could show that the denial caused you “objectively tangible harm.” However, in Chambers v. District of Columbia, the D.C. Circuit recently  decided that the additional requirement of that harm was not supported by the language of the statute.

Ms. Chambers Sought Different Chambers

The plaintiff, Mary Chambers, worked in the D.C. Office of the Attorney General for over 20 years. She sought numerous transfers to different units in the office but never got the job. She ended up filing a charge of sex discrimination with the EEOC claiming that similarly situated male employees had been granted transfers like the ones she had been seeking.

The district court applied a 1999 D.C. Circuit case, Brown v. Brody, in which the court held that the denial or forced acceptance of a job transfer is actionable under Title VII only if the employee could prove he or she suffered “objectively tangible harm.” Under this standard, the district court stated that even if the denial of her transfers had been motivated by sex discrimination, Chambers had not proven the harm required. The court granted summary judgment for the defendant.

Appeal So Interesting, It Was Heard Twice

Undeterred, Chambers appealed to the D.C. Circuit. On its initial review, the court held that they were bound by Brown and affirmed the summary judgment. However, based on some strong concurring opinions, the court decided to hear the case en banc (meaning all the judges on that circuit consider the case together instead of just a three-judge panel).

The issue before the en banc panel was the fact that nowhere in Title VII is there a requirement that a plaintiff prove that an employer’s discriminatory act caused “objectively tangible harm.” The court looked at the plain meaning of the statute and held that refusing an employee’s request for a transfer while granting a similar request to a similarly situated coworker is treating one employee worse than the other. If that was done based on a statutorily protected classification (like sex), then the “analysis is complete.” Title VII has no requirement to show any “objectively tangible harm.” The court chose not to accept the argument that allowing this type of litigation would result in de minimus employment decisions being highly litigated. Instead, it relied on the fact that Title VII does not include such a standard of proof.

Where Do We Go from Here?

The court found that decisions that change an employee’s position can be an adverse employment action and therefore covered by Title VII. Employers should be aware that there are many steps in an employee’s journey and that at each one, the employer should make sure that the decisions are being made without regard to any of the federally protected classes.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 158
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About this Author

J. William Manuel Litigation Attorney Bradley Jackson, MI
Partner

Will Manuel focuses his practice primarily on commercial and employment litigation. He has handled various disputes for both large and small businesses in both Mississippi and other jurisdictions.

Will's clients include numerous manufacturers and commercial interests as well as various insurance and financial services companies. He has worked to defend these clients in both MDL litigation and individual actions brought in Mississippi. Will also has experience in advising businesses on issues involving age discrimination, sexual harassment and...

601-592-9915
Anne R. Yuengert Employment Attorney Bradley Birmingham
Partner

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

205-521-8362
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