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D.C. Circuit Poised to Expand Law as it Weighs Trivial Job Bias

Oct. 26, 2021, 11:02 PM

A federal appeals court in Washington traded sharp exchanges with lawyers over whether explicit workplace bias could be too small or trivial to violate federal law, in a case that appears likely to overturn precedent on when workers can sue over the denial of a lateral job transfer.

During two and a half hours of oral argument Tuesday, the full U.S. Court of Appeals for the District of Columbia Circuit wrestled with how broadly to expand anti-bias protections. The judges considered what’s meant by a job transfer, what types of employer actions could give rise to a bias claim, and if Title VII of the 1964 Civil Rights Act allows “de minimis” levels of discrimination.

The D.C. Circuit seemed open to broadening Title VII’s scope beyond what any other federal circuits recognize and potentially creating the type of split that only the U.S. Supreme Court can resolve.

At issue is a rule from its 1999 decision in Brown v. Brody that employers can’t be liable under Title VII for denying or forcing a lateral transfer unless the worker shows a pay reduction or other “objectively tangible harm.”

The full D.C. Circuit agreed to review Brown in a case involving District of Columbia government worker Mary Chambers’ allegation that she was unlawfully denied her requests for a reassignment because of her sex.

Lawyers for Chambers, the D.C. government, and the U.S. Justice Department all argued that the circuit should strike down its tangible harm rule for lateral transfers. A court-appointed attorney backed the Brown precedent.

D.C. government attorney Caroline Van Zile argued for a de minimis exception, saying a bias-free workplace would be ideal, but employers need room to manage the workforce and avoid burdensome litigation. Her position sparked some pushback, particularly from Judge Patricia Millett.

“So your theory—just to be crystal clear then—is that Congress didn’t mean it when it said no discrimination on the basis of terms, conditions, and privileges of employment based on a protected characteristic,” Millett said. “What it meant was no big enough discrimination on a protected basis in your terms, conditions, and privileges of employment.”

Judge Gregory Katsas appeared to back an exception for trivial discrimination despite that carveout not being part of Title VII, saying there’s a centuries-old background rule that de minimis harms aren’t actionable.

Striking down Brown—even if the circuit court also includes a de minimis exception—would still add up to a “more plaintiff-friendly view” than any other court has taken, Judge Justin Walker suggested.

Trivial Workplace Bias?

Chambers’ attorney, Brian Wolfman of Georgetown University, emphasized that job discrimination based on race, sex, or other protected characteristic is a harm unto itself that will always be more than trivial. That makes a carveout for de minimis workplace bias practically irrelevant, he said.

“To the extent there is one, discrimination alone gets you beyond any de minimis threshold,” Wolfman said.

Wolfman argued for a broad ruling that goes beyond just lateral transfers, with details to provide guidance on what types of job terms, conditions, and privileges are protected by Title VII.

Judges David Tatel and Douglas Ginsburg responded that the ruling wouldn’t need to get into that level of detail, which could make the standard more complicated than necessary to broaden it. Ginsburg suggested all the court needs to say is that the denial of lateral transfers is actionable under Title VII because it’s an employment term.

“And if we say that, the strong implication is that anything that infringes a term, condition, or privilege of employment is actionable,” Ginsburg added.

Explicit Racism

The court appointed Zachary Schauf of Jenner & Block LLP to defend the rule from Brown requiring an objective, tangible harm for a Title VII claim. Millett, after forcefully pushing back against the D.C. government’s argument for a de minimis exception earlier in the session, emerged as Schauf’s most aggressive questioner.

Millett poked at the objective and material components of the Brown standard, asking Schauf whether a Black department store worker could sue for race bias because he really wanted to sell power tools but was denied that assignment based on an expressly discriminatory view of Black people.

If the denial and the existence of segregation was all the worker had, then there wouldn’t be enough for a claim, Schauf answered.

“Just to be crystal clear, your reading of” the job bias section of Title VII “is that you can have the most malevolent, intentional, readily documented, stereotypical discrimination by the employer and” that section “says, ‘Not good enough, I need to know why the employee wanted that job,’” Millett responded.

Schauf said the worker has to show an objective, material impact.

‘A Little Discriminated Against’

Later in oral argument, Millett asked whether a worker could sue for discrimination if a supervisor set out donuts for workers under a sign that read “Whites only.”

Schauf said it wouldn’t satisfy the Brown standard nor would it overcome a de minimis exception for intentional discrimination.

Judge Judith Wilson Rogers said that anti-discrimination precedent is based on courts trying to narrow the congressional intent behind Title VII, which was to eliminate all bias in the workplace. Congress recognized that facing discrimination “is a harm in and of itself,” which can never be so trivial that it’s not worth considering, she said.

“Just like ‘being a little bit pregnant’ was a term that was thrown around,” Rogers said, “‘being a little discriminated against’ just doesn’t fit with the context, it seems to me, in which Congress was acting.”

The case is Chambers v. D.C., D.C. Cir. en banc, No. 19-07098, oral argument 10/26/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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