Over two decades ago, in Brown v. Brody, 199 F.3d 446, 457 (DC Cir. 1999), held that the DC Circuit held that an employer discriminatingly or forcibly accepts a job transfer violates Title VII only if the employee suffers “objectively tangible harm,” reduced pay or benefits.
Brown, on its face, was limited to alleged discriminatory transfers. But later cases applied its standard – sometimes called the “adverse action requirement” – to an array of challenging employment decisions in which plaintiff only suffered subjective harm. See Forkkio v. Powell306 F.3d 1127, 1131 (2002) (“Purely subjective injuries, such as dissatisfaction with a reassignment… Or public humiliation or loss of reputation… Are not adverse actions. Therefore, Forkkio could not establish an adverse action. on the basis that the reassignment deprived him of his prestige. “); Stewart v. Evans275 F.3d 1126, 1135 (D.C. Cir. 2002) (“Even accepting as true, as we must at this stage, Ms. Stewart’s allegation that her removal from the panel was an act of reprisal, does not raise it. Level one adverse employment action contemplated by Title VII, because there was no change in Ms. Stewart’s job position, grade, pay, or benefits. “); Russell v. Pincipi257 F.3d 815, 818 (D.C. Cir. 2001) (“while extending adverse employment actions beyond readily quantifiable damages, not everything that makes an employee unhappy is an actionable adverse action. Minor and even trivial employment actions that are ‘irritable’ , the chip-on-the-shoulder employee did not like the form on the basis of a discrimination suit. ‘”).
The rationale? To guard against “‘judicial micromanagement of business practices” “and”‘ frivolous suits over insignificant slights. “
That changed earlier this month, when the full DC Circuit decided Chambers v. District of Columbia, 2022 WL 1815522, slip op. (DC Cir. June 3, 2022).
Chambers was a veteran of the DC Office of Attorney General Staff. Concerned that her caseload was heavier than her colleagues’, she sought numerous transfers to other units. The Office of the Attorney General denied her requests. And, Chambers rejoined with a Title VII action, contending that the Office treated him differently from men who sought a transfer.
Citing BrownThe district court granted the city’s summary judgment motion because she proffered no evidence that the transfer denials caused her to be “objectively tangible harm.” On appeal, a three-judge panel affirmed. Then, the full court granted rehearing en banc to reconsider the objectively tangible harm standard.
Brown, the full court concluded, is “fundamentally flawed” as it elevates policy concerns over Title VII’s plan text. Title VII does not require plaintiffs to prove that their employer subjected them to “objectively tangible harm.” Rather,
[o]It is 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.
IdGeneral Chat Chat Lounge at * 2.
Plus, that standard, according to the Court, is almost impossible to administer.
We have time and again wrestled with Brown’s requirement of “objectively tangible harm.” General Chat Chat Lounge General Chat Chat Lounge General Chat Chat Lounge Our district judges have done so in dozens more cases. General Chat Chat Lounge General Chat Chat Lounge General Chat Chat Lounge These cases have consumed enormous judicial resources to answer a question far removed from the Core Title VII inquiry – whether an employer has discriminated against an employee based on a protected characteristic. And they leave the district court adrift with a line-drawing exercise unmoored from the statutory text. Both our court’s experience and that of our sister circuits have proven Brown’s standard to be largely unadministrable. Neither practical nor doctrinal reasons justify persisting in this course.
IdGeneral Chat Chat Lounge at * 8.
Thus, Brownthe Court concluded, had to be overruled.
Chambers This is formally limited to job transfer cases. Its ramifications, however, may be sweeping.
That ‘s because Chambers’ logic, like Brown’sarguably extends beyond transfers to all Disparate impact claims – like claims involving critical supervisory comments and shouting, increased scrutiny, an employee’s absence in conducting meetings, intemperate supervisory behavior, and uneven workload distribution, to name a few. Brown May be spawn waves of Title VII cases in which plaintiffs, though genuinely offended, have no objective, tangible harm. Plus, with that standard no longer available to screen out such cases, the cost of defending or settling them could skyrocket.