DC Circuit Relaxes Standard for Title VII Plaintiffs

Over two decades ago, in Brown v. Brody, 199 F.3d 446, 457 (DC Cir. 1999), the DC Circuit held that an employer that discriminatorily denies or forces an employee to accept a job transfer violates Title VII only if the employee suffers “objectively tangible harm,” like 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 challenged employment decisions in which the plaintiff only suffered subjective harm. See Forkkio v. Powell, 306 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 prestige.”); Stewart v. Evans, 275 F.3d 1126, 1135 (DC 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, this does not rise to the level of an adverse employment action as contemplated by Title VII, because there was no change in Ms. Stewart’s job position, grade, pay, or benefits.”); Russell v. Pincipi, 257 F.3d 815, 818 (DC Cir. 2001) (“‘While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Minor and even trivial employment actions that an ‘irritable, chip-on-the-shoulder employee did not like would otherwise form 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 DC Office of Attorney General employee. Concerned that her caseload was heavier than her colleagues’, she sought numerous transfers to other units. The Office of Attorney General denied her requests. And, Chambers rejoined with a Title VII action, contending that the Office treated her differently from men who sought a transfer.

Citing Brown, the District Court granted the City’s summary judgment motion because she proffered no evidence that the transfer denials caused her “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” because 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]nce 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 is complete.  

Id. at * 2.

Plus, that standard, according to the Court, is nearly impossible to administer.

We have time and again wrestled with Brown’s requirement of “objectively tangible harm.” . . . Our district judges have done so in dozens more cases. . . . These cases have consumed enormous judicial resources seeking 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 district courts 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 largely unadministrable. Neither practical nor doctrinal reasons justify persisting in this course.

Id. at * 8.

Thus, Brown, the Court concluded, had to be overruled.


Chambers is formally limited to job transfer cases. Its ramifications, however, may be sweeping.  

That’s because Chambers’ logic, like Brown’s, arguably extends beyond transfers to all disparate impact claims -- like claims involving critical supervisory comments and shouting, increased scrutiny, conducting meetings in an employee’s absence, intemperate supervisory behavior, and uneven workload distribution, to name a few. Brown may spawn waves of Title VII cases in which the plaintiffs, though genuinely offended, have suffered 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.


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