Discriminatory Job Transfers May Be an Actionable Adverse Action Under Title VII
Title VII makes it “an unlawful employment practice . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” among other things, “because of such individual’s race, color, religion, sex, or national origin.” The federal courts have typically required some additional showing of tangible harm – the D.C. Circuit characterized this as “objectively tangible harm” – in order to sustain a discrimination claim under Title VII. But that is no longer the case in the D.C. Circuit, which recently addressed this issue in the context of a discriminatory job transfer claim.
In Chambers v. District of Columbia, the employee sued for sex discrimination on the basis that her requests for transfer to another unit were denied while male employees received such transfers. The D.C. Circuit previously held that job transfers do not amount to objectively tangible harm on which a Title VII claim may be based. But it now overturns its own precedent to hold that an employer that denies or forces a transfer because of an employee’s protected characteristic has discriminated against that employee in violation of Title VII. The D.C. Circuit stated, “Once 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. The plain text of Title VII requires no more. Any additional requirement, such as [the] demand for ‘objectively tangible harm,’ is a judicial gloss that lacks any textual support.”
This is a troubling development for employers, as it makes it easier for an employee to assert a discrimination claim – at least in the D.C. Circuit. The opinion also highlights the fact that the other Circuit Courts have been inconsistent with regard to the sort of harm that may support a claim for discriminatory job transfer, with some requiring an “ultimate employment decision” like hiring, discharging, promotion, leave or compensation, while others permit claims based on conduct short of that.