Mary Chambers v. DC (EN BANC)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 26, 2021 Decided June 3, 2022

No. 19-7098

MARY E. CHAMBERS,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

On Rehearing En Banc

Brian Wolfman argued the cause for appellant. With him

on the briefs were David A. Branch and Madeline Meth.

Anna M. Baldwin, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States in support of

appellant. With her on the brief were Kristen Clarke, Assistant

Attorney General, Bonnie I. Robin-Vergeer, Attorney, Jennifer

S. Goldstein, Associate General Counsel, Equal Employment

Opportunity Commission, and Sydney A.R. Foster, Assistant

General Counsel.

Stephen B. Pershing and Carolyn L. Wheeler were on the

brief for amicus curiae Metropolitan Washington Employment

Lawyers Association in support of appellant.

2

Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J. Zolle

were on the brief for amicus curiae Constitutional

Accountability Center in support of appellant.

Caroline S. Van Zile, Principal Deputy Solicitor General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellee. With her on the brief were Karl

A. Racine, Attorney General, Loren L. AliKhan, Solicitor

General, at the time the brief was filed, Holly M. Johnson,

Senior Assistant Attorney General, and Megan D. Browder,

Assistant Attorney General.

Zachary C. Schauf, appointed by the court, argued the

cause and filed the brief as amicus curiae.

Before: SRINIVASAN, Chief Judge, HENDERSON, ROGERS,

TATEL *, MILLETT, PILLARD, WILKINS, KATSAS, RAO, WALKER,

and JACKSON **, Circuit Judges, and GINSBURG, Senior Circuit

Judge.

Opinion for the Court filed by Circuit Judge TATEL and

Senior Circuit Judge GINSBURG.

Opinion concurring in the judgment in part and dissenting

in part by Circuit Judge WALKER.

Dissenting opinion by Circuit Judge KATSAS, with whom

Circuit Judges HENDERSON and RAO join.

TATEL, Circuit Judge, and GINSBURG, Senior Circuit

Judge: In 1999, our court ruled in Brown v. Brody that the

*

Judge Tatel assumed senior status after this case was argued and

before the date of this opinion.

**

Judge Jackson did not participate in this matter.

3

denial or forced acceptance of a job transfer is actionable under

Title VII of the Civil Rights Act of 1964 only if the employee

suffered “objectively tangible harm.” 199 F.3d 446, 457.

Because this rule is inconsistent with Title VII and because

intervening Supreme Court authority has eroded its reasoning,

we now overrule it. We hold that an employer that transfers an

employee or denies an employee’s transfer request because of

the employee’s race, color, religion, sex, or national origin

violates Title VII by discriminating against the employee with

respect to the terms, conditions, or privileges of employment.

I

Mary Chambers worked in the District of Columbia’s

Office of the Attorney General for more than twenty years

before this litigation, first as a clerk and later as a Support

Enforcement Specialist and investigator. Complaining of a

larger caseload than that of her colleagues, she sought

numerous transfers to different units in the Office. After these

requests were denied, she filed a charge of sex discrimination

with the Equal Employment Opportunity Commission,

contending that similarly situated male employees had been

granted transfers they requested. She filed this Title VII suit

against the District in 2014 alleging unlawful sex

discrimination and retaliation.

The district court, applying Brown, granted summary

judgment to the District. The court concluded that Chambers

had proffered no evidence that the denial of her transfer

requests, even if motivated by discriminatory animus, caused

her “‘objectively tangible harm.’” Chambers v. District of

Columbia, 389 F. Supp. 3d 77, 93 (D.D.C. 2019) (quoting

Brown, 199 F.3d at 457). Noting we were bound by Brown, a

panel of this court affirmed for the same reason. Chambers v.

District of Columbia, 988 F.3d 497, 501 (2021). The members

4

of the panel—the authors of this opinion—wrote separately,

however, to echo concerns voiced in prior opinions that

Brown’s limitation on claims for discriminatory lateral

transfers contravenes Title VII, which makes no reference to

“objectively tangible harm” or any similar requirement. Id. at

503–04; see Ortiz-Diaz v. U.S. Department of Housing &

Urban Development, 867 F.3d 70, 80–81 (D.C. Cir. 2017)

(Rogers, J., concurring); id. at 81 (Kavanaugh, J., concurring).

The panel members urged “that the full court hear this case en

banc to correct this clear legal error.” Chambers, 988 F.3d at

506. Heeding that call, the full court granted rehearing en banc

to reconsider Brown’s rule that the denial or forced acceptance

of a job transfer is actionable under Title VII, 42 U.S.C.

§ 2000e-2(a)(1), only if the employee suffered “‘objectively

tangible harm.’” Chambers v. District of Columbia, No. 19-

7098, 2021 WL 1784792 (May 5, 2021) (quoting Brown, 199

F.3d at 457).

On rehearing, Chambers contends that Brown is facially

inconsistent with Title VII. In her view, discrimination

“connotes any differential treatment,” and Title VII prohibits

all workplace discrimination based upon a protected

characteristic. Appellant’s Br. 16. The United States filed an

amicus brief in support of Chambers. The District also agrees

that Title VII has no requirement of “objectively tangible

harm” and that discriminatory transfers violate Title VII, but

nonetheless urges us to stop short of accepting Chambers’s

broad formulation, lest the courts be deluged by challenges to

“de minimis or harmless” workplace decisions. Appellee’s Br.

10. With the parties in agreement that Brown should be

overruled, we appointed Zachary C. Schauf as amicus curiae to

defend the rule in Brown. He has ably done so, and the court

thanks him for his assistance.

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II

The parties agree that Chambers’s claim is covered by the

antidiscrimination provision of Title VII, section 703(a)(1),

which makes it “an unlawful employment practice . . . to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Chambers claims

her employer denied her repeated requests for a transfer to a

different unit while granting similar requests to male

employees. Therefore, the question before us, put in terms of

the relevant statutory text, is whether an employer that denies

an employee’s request for a job transfer because of her sex (or

another protected characteristic) “discriminate[s] against” the

employee with respect to the “terms, conditions, or privileges

of employment.” As we show below, the answer provided by

the straightforward meaning of the statute is an emphatic yes,

and that answer is fully consistent with Supreme Court

precedent.

A

We begin by parsing the statute, giving undefined terms

their “ordinary meaning.” Taniguchi v. Kan Pacific Saipan,

Ltd., 566 U.S. 560, 566 (2012). The relevant part of section

703(a)(1) is capacious: By leaving undefined the phrase

“terms, conditions, or privileges of employment,” the Congress

“evince[ed] a[n] . . . intent to strike at the entire spectrum of

disparate treatment . . . in employment.” Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (internal quotation

marks omitted). Although the phrase is not without limits—

not everything that happens at the workplace affects an

employee’s “terms, conditions, or privileges of

6

employment”—the transfer of an employee to a new role, unit,

or location (as opposed to the mere formality of a change in

title that Judge Walker instances in his separate opinion)

undoubtedly is included. Indeed, as the Government aptly

says, “it is difficult to imagine a more fundamental term or

condition of employment than the position itself.” Br. for

Resp’t in Opp. at 13, Forgus v. Shanahan, 141 S. Ct. 234

(2020) (No. 18-942), 2019 WL 2006239, at *13 (cleaned up).

The meaning of the term “discriminate” is also

straightforward. “Discrimination” refers to “differential

treatment.” Jackson v. Birmingham Board of Education, 544

U.S. 167, 174 (2005). The unadorned wording of the statute

admits of no distinction between “economic” and “non-

economic” discrimination or “tangible” and “intangible”

discrimination. See Meritor, 477 U.S. at 64. Nor does the

statute distinguish between “subtle” or “overt” discrimination.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801

(1973). Rather, Title VII prohibits all discrimination with

respect to terms and conditions of employment.

The statute speaks of “discriminat[ing] against” an

employee because of a protected characteristic. “No one

doubts that the term ‘discriminate against’ refers to distinctions

or differences in treatment that injure protected individuals.”

Burlington Northern & Santa Fe Railway Co. v. White, 548

U.S. 53, 59 (2006); see also Bostock v. Clayton County, 140 S.

Ct. 1731, 1740 (2020) (“To ‘discriminate against’ a person,

then, would seem to mean treating that individual worse than

others who are similarly situated.”). Refusing an employee’s

request for a transfer while granting a similar request to a

similarly situated employee is to treat the one employee worse

than the other. Like “refus[ing] to hire” or “discharg[ing]” an

employee, refusing a request for a transfer deprives the

employee of a job opportunity. An employer that does this

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because of the employee’s “race, color, religion, sex, or

national origin” has surely discriminated against the first

employee because of a protected characteristic.

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 Brown’s demand for “objectively tangible

harm,” is a judicial gloss that lacks any textual support.

Applying the statute as written to discriminatory job transfers

does not, as the dissent claims, create an “artificial distinction

between transfers and everything else.” Dissenting Op. at 29.

To the contrary, it treats discriminatory transfers the same as

any other discrimination with respect to the “terms, conditions,

or privileges of employment.”

Our amicus tries to avoid this straightforward conclusion

by invoking the canon of ejusdem generis to argue that section

703(a) is limited to employment actions that are cognizable

under the rule set forth in Brown. In Babb v. Wilkie, the

Supreme Court applied this canon to conclude that the similarly

worded statutory prohibition against age discrimination did not

“encompass things that occur before a final decision is made.”

140 S. Ct. 1168, 1176 n.4 (2020). That lends no support to the

amicus’s completely different application of the canon.

However much the general term embraces, it surely includes

refusing a job transfer request, the functional equivalent of

“refus[ing] to hire” an employee for a particular position.

One last point: Our amicus and the dissent argue that for

a claim to be cognizable under section 703(a)(1), the plaintiff

must allege more than de minimis harm because the principle

de minimis non curat lex—the law is not concerned with

8

trifles—is assumed to be incorporated in every statute, absent

an indication to the contrary, see Wisconsin Department of

Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992).

Whatever the merits of this argument, Brown excludes far more

than de minimis harms. We have, for example, held that

“public humiliation or loss of reputation”—injuries that have

traditionally supported tort liability at common law, see

Memphis Community School District v. Stachura, 477 U.S.

299, 306–07 (1986)—fail to satisfy Brown’s requirement of an

“objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,

1130–31 (D.C. Cir. 2002). In any event, we need not decide

today whether Title VII includes a de minimis exception

because the discriminatory denial of a job transfer request,

which deprives an employee of an employment opportunity

offered to a similarly situated colleague, easily surmounts this

bar.

B

1

Brown made no attempt to ground the requirement of an

“objectively tangible harm” in the statute. Instead, it based that

requirement upon “the clear trend of authority” in the decisions

of other circuits and upon the Supreme Court’s then-recent

decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1998), which it viewed as having “reinforced” the

requirement. 199 F.3d at 455–57 (internal quotation marks

omitted). For the reasons mentioned above, we are convinced

that Brown’s approach is clearly mistaken, and that conviction

is not overcome by any “trend of authority,” let alone one

marred by inconsistency, see below, section III.

Whatever reinforcement Ellerth furnished when Brown

was decided has since been undermined by the Supreme

Court’s decision in White. In Ellerth, the Court relied upon

9

principles of agency law to hold that an employer has no

affirmative defense to vicarious liability under Title VII for a

hostile work environment when harassment by a supervisor

“culminates in a tangible employment action.” 524 U.S. at 765.

The Brown court apparently perceived in that conclusion an

implicit endorsement of a “tangible harm” requirement in Title

VII claims involving direct liability. See 199 F.3d at 456.

The Supreme Court put that notion to rest in White,

however, when it explained that “Ellerth did not discuss the

scope of [Title VII’s] general antidiscrimination provision,”

548 U.S. at 65, and that it had spoken of a “‘tangible

employment action’ . . . only to ‘identify a class of [hostile

work environment] cases’ in which an employer should be held

vicariously liable (without an affirmative defense) for the acts

of supervisors,” id. at 64 (alteration in original) (quoting

Ellerth, 524 U.S. at 760–61). After White, no basis remains for

thinking Ellerth supports, even implicitly, the approach

adopted in Brown.

2

Finding no support in the statute or in Ellerth, our amicus

and the dissent seek refuge in Supreme Court precedent dealing

with the antiretaliation provision of Title VII. Our conclusion

about the meaning of the antidiscrimination provision,

however, is fully consistent with that precedent because there

are fundamental differences between the antidiscrimination

and the antiretaliation provisions.

The antiretaliation provision of Title VII, section 704(a),

makes it an “unlawful employment practice for an employer to

discriminate against . . . any individual . . . because he has

opposed any practice made an unlawful employment practice

by this subchapter . . . .” 42 U.S.C. § 2000e-3(a). In White, the

Court identified the contours of this provision, concluding that

10

because it is “important to separate significant from trivial

harms,” 548 U.S. at 68, only a retaliatory act that is “materially

adverse” to the plaintiff is actionable, id. at 67–68. The Court

further concluded that the standard for judging “material

adversity” must be objective, meaning it must be judged from

the perspective of a reasonable employee, because this is a

“judicially administrable” standard that “avoids the

uncertainties and unfair discrepancies that can plague a judicial

effort to determine a plaintiff’s unusual subjective feelings.”

Id. at 68–69. The amicus argues that the reasons the Court

provided for reading those limitations into the antiretaliation

provision are just as applicable to the antidiscrimination

provision.

This argument ignores a fundamental difference between

the two provisions: Unlike the antidiscrimination provision,

the antiretaliation provision is not expressly limited to actions

affecting the terms, conditions, or privileges of employment.

Reasoning that this terminological difference must “make a

legal difference,” id. at 63, the Court held that the

antiretaliation provision prohibits even retaliatory actions that

do not affect the terms, conditions, or privileges of

employment, for example, an employer making a false criminal

charge against an employee who had complained of

discrimination, or a law enforcement agency refusing to

investigate death threats made against an employee who had

complained of discrimination, id. at 63–64 (citing Rochon v.

Gonzales, 438 F.3d 1211, 1213 (D.C. Cir. 2006) and Berry v.

Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996)).

It was only after adopting this expansive interpretation of

the antiretaliation provision that the Court was faced with the

problem of “separat[ing] significant from trivial harms.” Id. at

68. The Court therefore looked outside the text of the provision

for the necessary limiting principle. To that end, the Court

11

identified the purpose of the antiretaliation provision as

preventing “employer interference with unfettered access to

Title VII’s remedial mechanisms” and concluded the provision

should therefore be limited to “employer actions that are likely

to deter victims of discrimination from complaining to the

EEOC, the courts, and their employers” or as the Court put it,

employer actions that are “materially adverse” to an employee.

Id. (internal quotation marks omitted). The Court then had to

decide how best to measure the likely deterrent effect of a

challenged action; as mentioned above, the Court adopted an

objective approach because it is more judicially administrable.

None of these considerations applies to the

antidiscrimination provision. By tethering actionable behavior

to that which affects an employee’s “terms, conditions, or

privileges of employment,” the antidiscrimination provision by

its terms provides the necessary limiting principle. When the

phrase “terms, conditions, or privileges of employment” is

reasonably construed, there is no danger that faithful

enforcement of the antidiscrimination provision will turn Title

VII into a “general civility code” for the workplace, Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).

Moreover, determining whether a challenged action relates

to “terms, conditions, or privileges of employment” is a purely

objective inquiry, well within the competence of a court. When

it comes to the antidiscrimination provision, therefore, there

simply is no need to engage in a “reasonable employee” inquiry

to keep the court’s task within manageable limits.

Our conclusion that the holding in White does not apply to

the antidiscrimination provision is also more consistent with

the different roles played by the two provisions. The role of

the antiretaliation provision is to prevent “employer

interference with unfettered access to Title VII’s remedial

12

mechanisms.” White, 548 U.S. at 68 (internal quotation marks

omitted). A “material adversity” requirement, which excludes

actions insufficient to deter an employee from seeking a

remedy for a Title VII violation, is entirely consistent with this

objective. The antidiscrimination provision, by contrast, aims

“to prohibit all practices in whatever form which create

inequality in employment opportunity due to discrimination on

the basis of race, religion, sex, or national origin,” Franks v.

Bowman Transportation Co., 424 U.S. 747, 763 (1976), and to

create “a workplace where individuals are not discriminated

against because of their racial, ethnic, religious, or gender-

based status,” White, 548 U.S. at 63. Thus, the

antidiscrimination provision “seeks to prevent injury to

individuals based on who they are,” while “[t]he antiretaliation

provision seeks to prevent harm to individuals based on what

they do.” Id.

Our dissenting colleagues also contend that precedent

governing hostile work environment claims suggests that Title

VII prohibits only objectively “‘severe’” discrimination,

assessed in terms of how it “‘would reasonably be perceived’

by someone in the employee’s position.” Dissenting Op. at 9

(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21–22

(1993)). That defense of Brown fares no better. The thrust of

the hostile work environment cases is that an abusive working

environment amounts to a “constructive alteration[] in the

terms or conditions of employment” only if harassment is

severe or pervasive. Ellerth, 524 U.S. at 752 (emphasis added).

Those cases have no bearing on a case in which an employer

discriminates against an employee with respect to the actual

terms or conditions of employment—for example, by

transferring an employee to a new position because of the

employee’s race or sex.

13

Contrary to the dissent’s characterization of the resulting

jurisprudence as “harmless,” Dissenting Op. at 22, grafting an

“objectively tangible harm” requirement onto the

antidiscrimination provision has had consequences glaringly

inconsistent with the objectives of Title VII’s

antidiscrimination provision. One need look no further than

this case. Under the “objectively tangible harm” requirement,

an employer that denies an employee’s request for a transfer

because of the employee’s sex (or race, etc.) would escape

liability under Title VII unless the employee could show she

suffered an “objectively tangible harm,” even though the denial

of the request unquestionably deprived the employee of an

equal employment opportunity. Even more perverse, as our

amicus conceded at oral argument, an employer that provides

doughnuts every week for employees but hangs a “whites only”

sign over the doughnuts has not caused an “objectively tangible

harm” to non-white employees. Recording of Oral Arg.

2:04:12–2:05:48. That alone shows just how much the atextual

requirement of “objectively tangible harm” frustrates Title

VII’s purpose of ending discrimination in the workplace.

C

We are unpersuaded by our amicus’s argument that the

rule in Brown is necessary to shield employers from “judicial

micromanagement of business practices.” Amicus Br. 38

(quoting Mungin v. Katten Muchin & Zavis, 116 F.3d 1549,

1556 (D.C. Cir. 1997)). Overruling Brown, he posits, would

make a federal case out of “[a] salesperson transferred from

sporting goods to power tools.” Id. at 1. But of course, an

employer remains free to transfer an employee from one

department to another for no reason or for any reason at all—

any reason, that is, except the employee’s “race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). We

disagree with the amicus that refusing to let women work in the

14

power tools department because of gender stereotypes, for

example, is part of the “minutiae of personnel management”

that escapes Title VII’s notice. Amicus Br. 39 (internal

quotation marks omitted). To the contrary, it is exactly the sort

of workplace discrimination Title VII aims to extinguish. Yet,

as the amicus conceded at oral argument, Brown allows

employers to engage in that discrimination with impunity

unless an employee can show some additional “objective”

harm. Recording of Oral Arg. 1:50:58–1:52:06.

Moreover, well-established case law adequately protects

employers from frivolous claims. If a Title VII plaintiff fails

to plead “‘sufficient factual matter’” to state a discrimination

claim that is “‘plausible on its face,’” then the district court

should dismiss the case before discovery. Harris v. D.C. Water

& Sewer Authority, 791 F.3d 65, 68 (D.C. Cir. 2015) (some

internal quotation marks omitted) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). And under the framework set forth

in McDonnell Douglas, a Title VII plaintiff relying upon

circumstantial evidence must establish “an inference of

discrimination” before the burden shifts to the employer to

“identify [a] legitimate, non-discriminatory” reason for its

actions. Walker v. Johnson, 798 F.3d 1085, 1091–92 (D.C. Cir.

2015). To survive summary judgment, an employee claiming

a discriminatory transfer denial therefore must show not only

that the employee’s transfer request was rejected, but that it

“‘was rejected under circumstances which give rise to an

inference of discrimination.’” Harding v. Gray, 9 F.3d 150,

152 (D.C. Cir. 1993) (quoting Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981)). These doctrines

provide employers ample opportunity to terminate an

unmeritorious discrimination claim without reading an extra-

textual limitation into Title VII.

15

At bottom, our disagreement with our amicus and the

dissent is this. In their view, the Brown rule is necessary to

“screen out cases involving objectively insubstantial injuries

alleged to flow from garden-variety workplace assignments

and interactions.” Dissenting Op. at 30. In our view, we ought

to read Title VII to mean what it says—that it prohibits any

“discriminat[ion] against [an] individual with respect to . . .

terms, conditions, or privileges of employment,” 42 U.S.C.

§ 2000e-2(a)(1), even if that that discrimination is “garden-

variety.” This saves courts the trouble of administering an

open-ended requirement of objectively material injury found

nowhere in the statute’s text. And it is more consistent with

the statute’s “intent to strike at the entire spectrum of disparate

treatment . . . in employment.” Meritor, 477 U.S. at 64

(internal quotation marks omitted).

III

Having concluded that Brown is wrong, we now consider

whether to set it aside. Our court, like the Supreme Court,

observes the doctrine of stare decisis—“‘the idea that today’s

[c]ourt should stand by yesterday’s decisions.’” Allegheny

Defense Project v. FERC, 964 F.3d 1, 17 (D.C. Cir. 2020) (en

banc) (alteration in original) (quoting Kimble v. Marvel

Entertainment, LLC, 576 U.S. 446, 455 (2015)). Even in the

rare instances in which it is appropriate to grant rehearing en

banc, departure from stare decisis “‘demands special

justification.’” Critical Mass Energy Project v. Nuclear

Regulatory Commission, 975 F.2d 871, 875 (D.C. Cir. 1992)

(en banc) (quoting Arizona v. Rumsey, 467 U.S. 203, 212

(1984)). We have also explained, however, that stare decisis

applies with less force to our opinions than to those of the

Supreme Court, both because the circuit courts “play a different

role in the federal system” and because our precedent “is

16

generally established by the majority vote of just three circuit

judges.” Id. at 876.

We have previously identified two main reasons for

overruling circuit precedent. First, “it is appropriate for the en

banc court to set aside circuit precedent when, ‘on

reexamination of an earlier decision, it decides that the panel’s

holding on an important question of law was fundamentally

flawed.’” Allegheny, 964 F.3d at 18 (quoting Critical Mass,

975 F.2d at 876). “We also may depart from circuit precedent

when ‘intervening development[s]’ in the law—such as

Supreme Court decisions—‘ha[ve] removed or weakened the

conceptual underpinnings from the prior decision[.]’” Id.

(alterations in original) (quoting United States v. Burwell, 690

F.3d 500, 504 (D.C. Cir. 2012) (en banc)). Both reasons

support overruling Brown.

Brown is fundamentally flawed because it “elevated policy

concerns . . . over the plain statutory text.” Id. at 17. The plain

text of section 703(a)(1) contains no requirement that an

employee alleging discrimination in the terms or conditions of

employment make a separate showing of “objectively tangible

harm.” Members of this court have repeatedly noted that

Brown is therefore out of step with the “straightforward”

meaning of Title VII. Chambers, 988 F.3d at 503 (Tatel and

Ginsburg, JJ., concurring); see, e.g., Ortiz-Diaz, 867 F.3d at 81

(Kavanaugh, J., concurring) (“[T]ransferring an employee

because of the employee’s race (or denying an employee’s

requested transfer because of the employee’s race) plainly

constitutes discrimination with respect to ‘compensation,

terms, conditions, or privileges of employment’ in violation of

Title VII.” (quoting 42 U.S.C. § 2000e-2(a)). Our dissenting

colleagues contend that this defect is insufficiently serious to

overcome stare decisis, but it is exactly the same defect we

relied on in Allegheny. See Dissenting Op. at 19–21. In that

17

case, the en banc court held that a panel decision was

fundamentally flawed because, like Brown, it failed to comport

with the Supreme Court’s command to “‘enforce plain and

unambiguous statutory language . . . according to its terms.’”

Allegheny, 964 F.3d at 18 (quoting Intel Corp. Investment

Policy Committee v. Sulyma, 140 S. Ct. 768, 776 (2020)).

“Because the approach to statutory construction reflected in

[Brown] was fundamentally flawed and grounded in a mode of

statutory construction that has been foreclosed by the Supreme

Court, stare decisis principles do not stand in the way of the en

banc court holding that [Title VII’s antidiscrimination

provision] means what it says.” Id.

In addition, as explained above, the Supreme Court’s

decision in White, decided seven years after Brown, has

overtaken Brown’s reasoning. White clarified that Ellerth

required a showing of tangible harm only to identify a subset

of hostile work environment cases in which vicarious liability

would attach. White, 548 U.S. at 64. Therefore, Ellerth no

longer furnishes any support for Brown’s atextual

interpretation of the statute.

In overruling Brown, we acknowledge that the other

circuits that have addressed the question have held that a

plaintiff challenging the denial of a transfer under Title VII’s

antidiscrimination provision must make some additional

showing of tangible harm. Those circuits, however, speak with

discordant voices when it comes to the sort of harm that can

support a claim of a discriminatory job transfer. The Fifth

Circuit, for example, has held that “adverse employment

actions include only ultimate employment decisions such as

hiring, granting leave, discharging, promoting, or

compensating.” McCoy v. City of Shreveport, 492 F.3d 551,

559 (5th Cir. 2007) (per curiam) (cleaned up). The Fourth

Circuit has held just the opposite—that Title VII allows claims

18

for “[c]onduct short of ultimate employment decisions” in job

reassignment cases. James v. Booz-Allen & Hamilton, Inc.,

368 F.3d 371, 375–76 (4th Cir. 2004) (internal quotation marks

omitted). Both the Fifth and Eleventh Circuits consider a

transfer to be an actionable demotion if the new position is “less

prestigious or less interesting.” Thompson v. City of Waco, 764

F.3d 500, 503 (5th Cir. 2014) (internal quotation marks

omitted); see Hinson v. Clinch County, 231 F.3d 821, 830 (11th

Cir. 2000) (finding “a genuine issue of fact as to whether the

new job was less prestigious”). The Seventh Circuit disagrees,

holding that moving an employee “from an interesting job she

liked that involved overseeing several other people to a boring

job she didn’t like and that lacked any supervisory duties” falls

short of an adverse employment action. Place v. Abbott

Laboratories, 215 F.3d 803, 810 (7th Cir. 2000). In one

nonprecedential opinion, the Sixth Circuit faulted an employee

for adducing evidence of the prestigiousness of “postmaster

positions in general” rather than evidence specific to the city

where he sought a transfer to a postmaster position. Freeman

v. Potter, 200 F. App’x 439, 445 (6th Cir. 2006).

Two recent cases illustrate this wide divergence in how

other circuits treat discriminatory transfers. In EEOC v.

AutoZone, Inc., a Black employee’s supervisor told him that he

was being transferred to work in a different neighborhood

because the company wanted to keep his workplace

“predominantly Hispanic.” 860 F.3d 564, 565 (7th Cir. 2017)

(internal quotation marks omitted). Although that case dealt

with a different provision of Title VII, section 703(a)(2), the

Seventh Circuit indicated that the transfer at issue would not

amount to an adverse employment action because, in its view,

it insufficiently harmed the employee. Id. at 569–70. By

contrast, the Sixth Circuit held that discriminatory transfers are

actionable so long as the resulting harm is more than “de

minimis.” Threat v. City of Cleveland, 6 F.4th 672, 679 (6th

19

Cir. 2021). That court concluded that a job transfer surmounted

this bar when the only change in the employee’s job was not

receiving a shift on his “preferred day” of the week. Id. The

dissent downplays differences among the circuits as the sort of

“narrow disagreements” to be expected when courts apply a

“qualitative” standard. Dissenting Op. at 26. But it is hardly a

point in Brown’s favor that its rule is so amorphous as to

accommodate inconsistent outcomes in like cases.

Our own precedents applying Brown are no less muddled.

One panel held that refusing to transfer an employee to a

position “higher in the hierarchy” of a government agency

satisfied Brown’s requirement of “objectively tangible harm.”

Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003). By

contrast, another panel rejected a claim by an agency employee

who lost his temporary position as a section chief and was

made a unit chief “within [another] section.” Forkkio, 306 F.3d

at 1129–31. One panel held that the “inconvenience” of a “less

favorable schedule” was enough to support a claim for a

discriminatory transfer, Ginger v. District of Columbia, 527

F.3d 1340, 1344 (D.C. Cir. 2008), but another panel held that

Brown barred a claim based on a “shift change” to a “generally

less favorable” shift, Jones v. D.C. Department of Corrections,

429 F.3d 276, 281 (D.C. Cir. 2005). More recently, a divided

panel held that an employee suffered no “objectively tangible

harm” when he was “denied a transfer away from a racially and

ethnically biased supervisor to a non-biased supervisor more

likely to advance his career,” only to reverse course on

rehearing. Ortiz-Diaz, 867 F.3d at 71, 73–74.

We have time and again wrestled with Brown’s

requirement of “objectively tangible harm.” See, e.g., Ortiz-

Diaz, 867 F.3d at 74; Stewart, 352 F.3d at 426; Forkkio, 306

F.3d at 1131; Currier v. Postmaster General, 304 F.3d 87, 88

(2002); Russell v. Principi, 257 F.3d 815, 818 (2001);

20

Freedman v. MCI Telecommunications Corp., 255 F.3d 840,

844 (2001); Maramark v. Spellings, No. 06-5099, 2007 WL

2935411, at *1 (Sept. 20, 2007). Our district judges have done

so in dozens more cases. See, e.g., Savage v. Azar, 301 F. Supp.

3d 114, 129 (2018); Halcomb v. Office of the Senate Sergeant-

at-Arms, 563 F. Supp. 2d 228, 240 (2008); Oliver-Simon v.

Nicholson, 384 F. Supp. 2d 298, 308 (2005). 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.

Not a single member of this court truly advocates retaining

Brown in its present form, the dissent’s invocation of stare

decisis notwithstanding. The dissent would uphold Brown only

after draining it of substance and recasting it as a de minimis

rule. That revisionist account is belied by our two-decade

misadventure in applying Brown, and as Judge Walker

correctly points out in his separate opinion, by the outcome in

Brown itself. Thus, the real point of contention is how to

interpret Title VII’s antidiscrimination provision. We interpret

it consistent with its text to prohibit all discrimination in the

terms or conditions of employment.

IV

Without any footing in the text of Title VII or Supreme

Court precedent, there is no sound basis for maintaining Brown

as circuit law. For these reasons, we overrule Brown and hold

that discriminatory job transfers are actionable under Title VII.

21

We remand the case to the merits panel for disposition

consistent with this opinion.

So ordered.

WALKER, Circuit Judge, concurring in the judgment in

part, dissenting in part.

Title VII of the Civil Rights Act prohibits employment

discrimination based on “race, color, religion, sex, or national

origin.”1 To prevail on an antidiscrimination claim under Title

VII, plaintiffs must prove that they have suffered a non-de

minimis injury. That standard is far from onerous. It requires

only a showing that the injury is not “trifling” or “negligible.”2

Today, the Court could have clarified and embraced that

standard. Instead, it leaves open the possibility that plaintiffs

can successfully sue over de minimis injuries. That makes an

imperfect situation even worse — worse, that is, for everyone

except those who will profit from unjustified settlements and

expensive trials over the kinds of de minimis slights that Title

VII does not cover.

I

Title VII’s antidiscrimination provision makes it unlawful

for an employer:

to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against

any individual with respect to his

compensation, terms, conditions, or privileges

of employment, because of such individual’s

race, color, religion, sex, or national origin.3

With that provision, “Congress intended to prohibit all

practices in whatever form which create inequality in

1

42 U.S.C. § 2000e-2(a)(1).

2

See De Minimis, Black’s Law Dictionary (11th ed. 2019) (cleaned

up).

3

42 U.S.C. § 2000e-2(a)(1).

2

employment opportunity due to discrimination on the basis of

race, religion, sex, or national origin.”4 It also protects against

workplace harassment that becomes so “severe or pervasive”

as to alter a “term, condition, or privilege of employment.”5

Brown v. Brody interpreted Title VII’s antidiscrimination

provision to require plaintiffs to show that they suffered an

injury that a “reasonable trier of fact” would deem “objectively

tangible harm.”6 By that, Brown may have meant objectively

“material” harm.7 But its reference to “tangible” harm

appeared to set a higher bar that has caused confusion in the

years since.8

Each of today’s opinions says the proper bar is not as high

as Brown made it sound. That leaves only the question of how

high the bar really is.

For the reasons explained by Judge Katsas, the answer is

that Title VII’s antidiscrimination provision makes actionable

only objectively material harm.9 And rather than repeat his

reasons, I join parts of I, II, III.A, III.B, and V of his opinion

insofar as they are consistent with this opinion.

I add two brief additional points. First, although we can

learn from our Court’s “two decades of judicial experience in

distinguishing substantial harms from insubstantial ones,”10 I

would give future panels license to break from those moments

4

Franks v. Bowman Transportation Co., 424 U.S. 747, 763 (1976).

5

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)

(cleaned up).

6

199 F.3d 446, 457 (D.C. Cir. 1999).

7

Dissent at 6.

8

Brown, 199 F.3d at 457.

9

Dissent at 7-13.

10

Dissent at 34.

3

in our Court’s past when it was not faithful to the standard as

Judge Katsas explains it today.

Second, for the same reasons Judge Katsas applies the

objectively-material-injury standard to the antidiscrimination

provision, the de minimis principle applies as well. The

“maxim de minimis non curat lex (‘the law cares not for

trifles’) is part of the established background of legal principles

against which all enactments are adopted, and which all

enactments (absent contrary indication) are deemed to

accept.”11 It is an “old law maxim” that parallels a more

modern idiom: Don’t make a federal case out of every

perceived slight.12 And nothing indicates that Congress

intended to displace the de minimis principle in Title VII’s

antidiscrimination provision.13 That provision is not “all about

trifles,”14 nor is it a “general civility code for the American

workplace.”15

I see little if any gap between a non-de-minimis-injury

standard (like that proposed by the District of Columbia,

embraced by the Sixth Circuit in Threat v. City of Cleveland,

and left open as a possibility by today’s decision) and the

correct understanding of an objectively-material-injury

11

Wisconsin Department of Revenue v. William Wrigley, Jr., Co.,

505 U.S. 214, 231 (1992).

12

Ware v. Hylton, 3 U.S. (3 Dall.) 199, 268 (1796) (opinion of

Iredell, J.).

13

See Threat v. City of Cleveland, 6 F.4th 672, 678-79 (6th Cir.

2021).

14

See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 234 (2014)

(emphasis omitted).

15

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.

53, 68 (2006) (quoting Oncale v. Sundowner Offshore Services, Inc.,

523 U.S. 75, 80 (1998)).

4

standard (like that explained by Judge Katsas).16 After all, an

injury is non-de minimis when it causes more than “trifling” or

“negligible” harm.17 And an injury is material when it causes

more than “trivial harms.”18 In this context, it is hard to detect

any difference between “trifling,” “negligible,” and “trivial.”19

II

Under a non-de-minimis- or objectively-material-injury

standard, the next question is whether job transfers are

actionable. There are at least three possible answers. One,

which Chambers proposes and the Court adopts, creates a

categorical rule that all job transfers are actionable.20 Another,

which our precedents have understood Brown v. Brody to

impose, says that no job transfers are actionable absent a

separate showing of additional harm.21 The third avoids a

16

Compare Threat, 6 F.4th at 679, with dissent at 8, 13.

17

See De Minimis, Black’s Law Dictionary (11th ed. 2019) (cleaned

up).

18

See White, 548 U.S. at 68 (“We speak of material adversity

because we believe it is important to separate significant from trivial

harms.”).

19

In addition, whether we call the standard non-de minimis or

material, the Supreme Court has made clear that it must be an

objective inquiry. See id. (“We refer to reactions of a reasonable

employee because we believe that the provision’s standard for

judging harm must be objective.”).

20

Majority at 8.

21

See Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999); see also

Ortiz-Diaz v. U.S. Department of Housing & Urban Development,

867 F.3d 70, 74 (D.C. Cir. 2017) (“lateral transfers to different

positions within a Department offering the same pay and benefits are

ordinarily not changes in the terms, conditions, or privileges of

employment” (cleaned up)); id. at 81 (Kavanaugh, J., concurring)

(“Our precedents hold that discriminatory transfers (and

5

categorical rule for the ill-defined category of job transfers and

instead approaches job transfers as we would any other

employment action, by asking whether the plaintiff suffered

material harm.

Judge Katsas’s opinion favors the third approach.22 It

rejects a categorical rule. For two reasons, I agree.

First, categorical rules aren’t real rules when the category

is undefined. And as Judge Katsas and our precedents show,

“job transfers” are not a defined category of employment

actions.23 So either categorical rule would take courts on a

detour from the proper inquiry (whether a plaintiff has suffered

material harm) to a labeling game about whether an

employment action meets the definition of something (a job

transfer) that has no clear definition.

Second, neither categorical rule accurately applies the

materiality standard. An all-job-transfers-are-actionable rule

disregards the reality that the harm from some job transfers is

de minimis. For example, a city that is restructuring its police

department could change an employee’s title from “head

detective” to “chief investigator” without altering the role. Is

that a job transfer? Possibly. Is the change in the chief

discriminatory denials of transfers) are ordinarily not actionable

under Title VII.”).

22

Dissent at 13.

23

Dissent at 28-29; Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir.

2003) (“Because of the equality of pay and benefits, we may call it a

lateral transfer, but in reality, it is more similar to a denial of a

promotion”).

6

investigator’s terms, conditions, and privileges of employment

negligible? Almost certainly.24

In light of possibilities like that, it is not clear how to

reconcile the categorical rule Chambers proposes with the de

minimis standard that Title VII requires. Perhaps “job

transfer” incorporates a non-de minimis alteration of duties,

location, or other terms and conditions of the job. That seems

to be the District of Columbia’s quite reasonable approach.25

If the Court agrees with the District of Columbia, it could say

so.

On the other extreme is a rule that says no job transfers are

actionable absent additional harm like a change in salary or

benefits. That rule is at least as misguided as its opposite. No

opinion in today’s case endorses it.

Unfortunately, the same cannot be said for some of our

precedents. One case, for example, concluded that the denial

of a transfer from Washington, D.C. to Albany, New York

wasn’t actionable.26 Another case held that moving an

employee from a position where he collected a paycheck while

doing no work to a job with significant responsibilities wasn’t

actionable either.27 But a move to a different state is not a

24

I say “almost” because it would be material if the employer said

the change was because of race: When the racism of an act is overt

and undeniable, the act is material for the same reasons Judge Katsas

explains that separate doughnuts would be actionable. Dissent at 31-

32 n.5.

25

District of Columbia En Banc Brief at 8.

26

Ortiz-Diaz v. U.S. Department of Housing & Urban Development,

831 F.3d 488, 492 (D.C. Cir. 2016), rev’d on other grounds by Ortiz-

Diaz, 867 F.3d 70 (D.C. Cir. 2017).

27

Currier v. Postmaster General, 304 F.3d 87, 88-89 (D.C. Cir.

2002).

7

negligible alteration of the terms and conditions of

employment, nor of course is a significant increase in job

responsibilities.

Instead of attempting to impose a categorical rule, we

should ask in each case whether the change in the employee’s

job was material. That approach respects the necessarily fact-

intensive nature of the de minimis standard. Under it, plenty

of cases are obviously actionable, like moving an employee to

another city,28 forcing her to take the night shift,29

or transferring her from forklift operator to basic laborer.30

The job transfer in Brown itself should have fit that bill,

and it would have had Brown not misapplied its stated

objective-materiality standard. Regina Brown was a loan

officer at the Export-Import Bank.31 She had been working in

the Bank’s Africa/Middle East Division, a role that had

foreign-policy elements.32 Then, when the Bank reorganized

its staff, it transferred her to its Contracts Administration

Division, where she had a quite different set of duties.33 That

transfer was a material change in her terms of employment,

contrary to Brown’s conclusion.34

That error, combined with Brown’s reference to “tangible

harm,” has caused confusion.35 As noted above, we have

rejected actionable claims. We have asked plaintiffs to show

28

Ortiz-Diaz, 831 F.3d at 492.

29

Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021).

30

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.

53, 71 (2006).

31

Brown, 199 F.3d at 448.

32

Id. at 448-49.

33

Id. at 449.

34

See White, 548 U.S. at 70-71.

35

199 F.3d at 457.

8

an “extraordinary reduction in responsibilities” or

“significantly diminished” duties rather than a material

change.36 And we have repeatedly had to reverse district court

determinations that harms are immaterial in what should have

been straightforward cases.37

* * *

Our post-Brown confusion led plaintiffs like Mary

Chambers to litigate under the misapprehension that they must

show more of an injury than a job transfer with meaningfully

different job responsibilities. Today’s en banc court can

provide Chambers with an opportunity to meet a clarified

standard, and I would vacate and remand in order to do so. I

therefore join the part of the Court’s judgment that vacates and

remands to the District Court.38

But on remand, I would require Chambers to show that the

denial of her requested job transfer was a non-de minimis

injury — in other words, that the requested job transfer

36

Youssef v. FBI, 687 F.3d 397, 402 (D.C. Cir. 2012) (quoting

Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)); Czekalski

v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007).

37

See, e.g., Youssef, 687 F.3d at 399-400, 402 (a move from

coordinating counterintelligence operations to bagging and tagging

evidence); Freedman v. MCI Telecommunications Corp., 255 F.3d

840, 844 (D.C. Cir. 2001) (involuntary transfer to the night shift).

38

The majority remands to the merits panel. As I understand it, the

panel will need to vacate the district court’s grant of summary

judgment and remand for the district court to address the District of

Columbia’s separate argument that Chambers did not raise a dispute

of material fact as to D.C.’s motive for denying her a transfer. As I

would also vacate and remand for further summary-judgment

proceedings, I join based on that understanding.

9

included objectively material differences in job

responsibilities.

Title VII requires that standard. It “is not especially

onerous.”39 A job transfer can often — though not always —

clear that low bar.

39

Dissent at 2.

KATSAS, Circuit Judge, with whom Circuit Judges

HENDERSON and RAO join, dissenting: This case turns on what

kinds of injuries support disparate-treatment claims under Title

VII of the Civil Rights Act of 1964. In Brown v. Brody, 199

F.3d 446 (D.C. Cir. 1999), we held that an allegedly

discriminatory transfer from one job to another, or an allegedly

discriminatory denial of a transfer, is not actionable unless it is

“materially adverse” to the employee when viewed

“objectively” from the perspective of a reasonable person in the

employee’s position. Id. at 457. This rule is consistent with

statutory text, longstanding Supreme Court precedent, and the

bedrock principle that Title VII is not a “general civility code”

for the workplace. Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81 (1998). For more than two decades, we have

applied Brown’s requirement of an objectively material injury

both inside and outside the specific context of job transfers.

Our district court likewise has applied Brown in scores if not

hundreds of cases. And every other circuit has followed

Brown, in name or in substance.

My colleagues today overrule this landmark precedent, but

they give no sound justification for breaking so sharply from

law so settled. First, they argue that Brown was insufficiently

grounded in the relevant legal text. That contention is

mistaken, and it would not justify a departure from statutory

stare decisis even if it were correct. Second, they argue that

intervening decisions have undermined Brown. But the

passage of time has only made Brown stronger: One circuit

after another has agreed with it, and the most relevant later

Supreme Court decision, Burlington Northern & Santa Fe

Railway Co. v. White, 548 U.S. 53 (2006), strongly reinforced

Brown by requiring plaintiffs to show an objectively material

injury to pursue retaliation claims under Title VII. Third, my

colleagues argue that Brown has proven un-administrable.

That conclusion is also mistaken, and it overlooks that White

requires essentially the same standard for retaliation claims as

Brown requires for disparate-treatment claims.

2

Today’s decision may have sweeping consequences and

will cause substantial uncertainty regardless. My colleagues

formally limit their decision to job-transfer claims, explain that

not every workplace slight affects the terms and conditions of

employment, and reserve the possibility that Title VII may not

extend to de minimis injuries. But the decision cannot fairly be

confined to job transfers; just as the logic of Brown easily

extends to all disparate-treatment claims, so does the anti-

Brown logic now embraced by my colleagues. To keep today’s

decision within manageable limits, courts will have to build up

either a new jurisprudence of what counts as terms or

conditions of employment (an inquiry we have previously

undertaken only in the context of harassment claims), or a new

jurisprudence firmly applying the de minimis canon in this

context, or both. These undertakings may fail, in which case

the floodgates will open. And if they succeed, the relevant

decisions will simply track our Brown jurisprudence, albeit

under another doctrinal label.

Why throw the law into such disarray? My colleagues flag

decisions that, in their view, inappropriately dismissed claims

alleging substantial injuries. Given the volume of decisions

applying the Brown rule, the existence of individual cases that

seem overly generous to employers (or, for that matter, of

individual cases that seem overly generous to employees) is

hardly surprising. But rather than tossing aside two decades of

precedent, I would simply remind the district courts what much

of our Brown caselaw has already made clear—that the

requirement of an objectively material injury, although

important, is not especially onerous.

For these reasons, and as explained further below, I

respectfully dissent from the decision to overrule Brown.

3

I

Title VII of the Civil Rights Act prohibits employment

discrimination based on race, sex, or other inappropriate

considerations. Section 703(a)(1) of the Act, the core anti-

discrimination provision of Title VII, makes it unlawful for an

employer “to fail or refuse to hire or to discharge … or

otherwise to discriminate against” any individual, “with respect

to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Section

704(a), the anti-retaliation provision, makes it unlawful for any

employer “to discriminate against” any employee “because he

has opposed any practice” prohibited by Title VII “or because

he has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing” under Title

VII. Id. § 2000e-3(a). Section 706 affords a private right of

action to any person “claiming to be aggrieved” by a violation

of Title VII. Id. § 2000e-5(f)(1).

In Brown, we considered when transfers from one job to

another may support disparate-treatment claims under section

703(a)(1). Surveying sixteen lower-court decisions, we noted

“wide and deep” authority for the proposition that a lateral

transfer does not necessarily inflict a “materially adverse”

actionable injury. 199 F.3d at 455–56 (cleaned up). We also

explained that Burlington Industries, Inc. v. Ellerth, 524 U.S.

742 (1998), invoked this line of authority to hold that, in cases

involving sexual harassment by a supervisor, the employer is

automatically liable if, but only if, the supervisor took some

“tangible employment action” against the employee. 199 F.3d

at 456–57. Given all this, we announced “the following rule”:

a plaintiff who is made to undertake or who is denied a

lateral transfer—that is, one in which she suffers no

4

diminution in pay or benefits—does not suffer an

actionable injury unless there are some other materially

adverse consequences affecting the terms, conditions,

or privileges of her employment or her future

employment opportunities such that a reasonable trier

of fact could conclude that the plaintiff has suffered

objectively tangible harm. Mere idiosyncra[s]ies of

personal preference are not sufficient to state an injury.

Id. at 457 (emphases added). Applying this rule, we held that

the plaintiff in Brown had alleged only an idiosyncratic

preference for one position over another, thus giving us “no

objective basis” to find a material injury. See id.

We have applied this rule in numerous cases since Brown.

In doing so, we have found sufficient harm in cases involving,

among other things, a transfer to the night shift, Freedman v.

MCI Telecomm. Corp., 255 F.3d 840, 844 (D.C. Cir. 2001), or

to a shift with irregular hours, Ginger v. District of Columbia,

527 F.3d 1340, 1344 (D.C. Cir. 2008). Repeatedly, we have

found sufficient harm if the employee was transferred to a

position with less attractive job responsibilities. See, e.g.,

Youssef v. FBI, 687 F.3d 397, 401 (D.C. Cir. 2012) (new

position “did not utilize [Youssef’s] skills and expertise”

(cleaned up)); Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir.

2011) (new position involved “complete loss of supervisory

responsibilities”); Pardo-Kronemann v. Donovan, 601 F.3d

599, 608 (D.C. Cir. 2010) (lawyer transferred “to a non-legal

position”); Czekalski v. Peters, 475 F.3d 360, 364–65 (D.C.

Cir. 2007) (“diminished … supervisory and programmatic

responsibilities”); Holcomb v. Powell, 433 F.3d 889, 902 (D.C.

Cir. 2006) (“extraordinary reduction in responsibilities”).

Likewise, we have held that the denial of a transfer to a

“supervisor’s position” caused sufficient harm, Stewart v.

Ashcroft, 352 F.3d 422, 426–27 (D.C. Cir. 2003), as did the

5

denial of a transfer “away from a biased supervisor,” Ortiz-

Diaz v. HUD, 867 F.3d 70, 74 (D.C. Cir. 2017). In contrast,

we have held that an employee’s “[p]urely subjective”

dissatisfaction with a new position is insufficient to support a

claim, as are objective but “not sufficiently significant” slights

such as being excluded from certain management meetings or

e-mails. Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir.

2002); see Currier v. Postmaster Gen., 304 F.3d 87, 88–89

(D.C. Cir. 2002) (transfer away from a “do nothing position”

to one “with some duties”); Stewart v. Evans, 275 F.3d 1126,

1135 (D.C. Cir. 2002) (“minor changes in work-related duties

or opportunities”).

We have also applied Brown outside the job-transfer

context, to screen out disparate-treatment claims involving

other objectively insubstantial alleged injuries. See, e.g., Baird

v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir. 2011) (critical

comments and shouting); Douglas v. Donovan, 559 F.3d 549,

553 (D.C. Cir. 2009) (failure to recommend employee for a

Presidential Rank Award); Patterson v. Johnson, 505 F.3d

1296, 1298 (D.C. Cir. 2007) (employee subjectively “fe[lt]

undermined” (cleaned up)); Broderick v. Donaldson, 437 F.3d

1226, 1233 (D.C. Cir. 2006) (attorney’s loss of opportunity to

submit briefs “directly to a top supervisor”); Taylor v. Small,

350 F.3d 1286, 1292–93 (D.C. Cir. 2003) (placement on

performance improvement plan); Russell v. Principi, 257 F.3d

815, 818–19 (D.C. Cir. 2001) (poor performance rating,

unconnected to any “bonus differential”). The common theme

of these cases is that section 703(a)(1) does not cover

“everything that makes an employee unhappy” at work. Id. at

818 (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th

Cir. 1996)).

In considering what constitutes an objectively material

injury, these decisions have treated disparate-treatment claims

6

under section 703(a)(1) and retaliation claims under section

704(a) as interchangeable. See, e.g., Forkkio, 306 F.3d at

1130–32; Holcomb, 433 F.3d at 902; Douglas, 559 F.3d at 552.

II

Plaintiff Mary Chambers works in the child support

division of the Office of the Attorney General of the District of

Columbia. Beginning in 2008, Chambers repeatedly sought to

be transferred from the interstate unit of that division to its

intake unit. As her requests were denied, Chambers filed

charges with the Equal Employment Opportunity Commission.

After the EEOC declined to pursue her claims, Chambers filed

this lawsuit alleging that the transfer denials reflected both sex

discrimination and retaliation. She produced no evidence that

the intake unit offered employees any better work, pay, hours,

advancement opportunity, prestige, or other benefits than did

the interstate unit. Applying Brown, the district court granted

summary judgment to the District of Columbia. Chambers v.

District of Columbia, 389 F. Supp. 3d 77, 93–94 (D.D.C.

2019).

A panel of this Court affirmed, also based on Brown.

Chambers v. District of Columbia, 988 F.3d 497, 501–02 (D.C.

Cir. 2021) (per curiam). But the panel called for the en banc

Court to reconsider Brown and overrule it. See id. at 502–06

(Tatel and Ginsburg, JJ., concurring).

III

In holding that disparate-treatment claims require the

plaintiff to suffer an objectively material injury, Brown was

correctly decided as a matter of statutory text, Supreme Court

precedent, and the courts’ general authority to interpret express

statutory injury requirements.

7

A

Section 703(a)(1) makes it unlawful for an employer to

“discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment,” because of prohibited considerations such as

race or sex. 42 U.S.C. § 2000e-2(a)(1). Section 706 authorizes

private civil actions by any individual “aggrieved” by a

violation of section 703(a)(1). Id. § 2000e-5(f)(1). Brown’s

requirement of an objectively material injury follows from

these provisions.

At an absolute minimum, the plaintiff must have suffered

some injury. Start with the phrase “discriminate against.” In

White, which involved a retaliation claim under section 704(a),

the Supreme Court, citing precedent under section 703(a)(1),

said “[n]o one doubts that the term ‘discriminate against’ refers

to distinctions or differences in treatment that injure protected

individuals.” 548 U.S. at 59 (emphasis added). And in Bostock

v. Clayton County, 140 S. Ct. 1731 (2020), which involved

section 703(a)(1), the Court cited White for the proposition that

“[t]o ‘discriminate against’ a person … would seem to mean

treating that individual worse than others who are similarly

situated.” Id. at 1740 (emphasis added). Moreover, a private

plaintiff must be “aggrieved” by a Title VII violation. In

common usage, “aggrieved” means “[h]aving suffered loss or

injury.” Black’s Law Dictionary 87 (revised 4th ed., 1968). In

civil-rights usage as well, an “aggrieved” person is one who

has “been injured by” an unlawful practice. 42 U.S.C.

§ 3602(i)(1) (Fair Housing Act definition). So, both the

substantive and private-cause-of-action provisions of Title VII

require a plaintiff to have been injured by an act of employment

discrimination.

8

Not every workplace slight constitutes discrimination

against an aggrieved employee. As the Supreme Court has

explained, “the venerable maxim de minimis non curat lex (‘the

law cares not for trifles’) is part of the established background

of legal principles against which all enactments are adopted,

and which all enactments (absent contrary indication) are

deemed to accept.” Wis. Dep’t of Rev. v. William Wrigley, Jr.,

Co., 505 U.S. 214, 231 (1992). Nothing in Title VII abrogates

this background principle. To the contrary, as many courts

have recognized, not every petty annoyance rises to the level

of “discriminat[ion] against” an employee. Threat v. City of

Cleveland, 6 F.4th 672, 678 (6th Cir. 2021) (Sutton, J.) (“To

‘discriminate’ reasonably sweeps in some form of an adversity

and a materiality threshold.”); Washington v. Ill. Dep’t of

Revenue, 420 F.3d 658, 661 (7th Cir. 2005) (Easterbrook, J.)

(“Congress could make any identifiable trifle actionable, but

the undefined word ‘discrimination’ does not itself command

judges to supervise the minutiae of personnel management.”).

For these reasons, a disparate-treatment plaintiff must prove an

injury that is at least material in the sense of being more than

de minimis.

The requirement of an objectively material injury is

confirmed by the canon of ejusdem generis, “which limits

general terms that follow specific ones to matters similar to

those specified,” CSX Transp., Inc. v. Ala. Dep’t of Rev., 562

U.S. 277, 294 (2011) (cleaned up). In section 703(a)(1), the

term “otherwise to discriminate against” is a general phrase

that follows specific adverse employment actions—“to fail …

to hire,” to “refuse to hire,” or “to discharge.” Construing the

statutory prohibition on age discrimination, which in pertinent

part is identically worded, the Supreme Court has invoked

ejusdem generis. Babb v. Wilkie, 140 S. Ct. 1168, 1176 n.4

(2020). Because the specific verbs here denote employment

actions that cause objectively material harm, the canon

9

similarly focuses the phrase “otherwise to discriminate

against.” To be sure, this phrase sweeps more broadly than the

specific prohibitions regarding hiring and firing, but it is not a

limitless catch-all for any workplace act, no matter how trivial.

Brown finds further support in section 703(a)(1)’s

limitation to acts regarding the “compensation, terms,

conditions, or privileges of employment.” 42 U.S.C. § 2000e-

2(a)(1). Consider the Supreme Court’s interpretation of this

language in cases involving workplace harassment. In that

context, the Court has imposed materiality and objectivity

requirements to screen out claims of insubstantial harm. To

direct harassing conduct at members of one race or sex is to

“discriminate against” the targets “because of” their race or

sex. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64

(1986). Yet not all discriminatory workplace harassment

violates section 703(a)(1). Instead, harassment is deemed to

alter the “terms, conditions, or privileges of employment,” and

thus is actionable, only if it is “severe or pervasive” enough to

create “an abusive working environment.” Id. at 67 (cleaned

up). Moreover, this “severe or pervasive” requirement must be

assessed “objectively,” in terms of how the harassment “would

reasonably be perceived” by someone in the employee’s

position. Harris v. Forklift Sys., 510 U.S. 17, 21–22 (1993).

And this requirement “prevents Title VII from expanding into

a general civility code.” Oncale, 523 U.S. at 81. These cases

all make clear that some acts of harassment, even if

discriminatory and in the workplace, do not “sufficiently affect

the conditions of employment to implicate Title VII.” Harris,

510 U.S. at 21–22. 1

1

I do not mean to suggest that the severe-or-pervasive

requirement developed in the harassment cases directly controls

conventional claims of disparate treatment. Cf. ante at 12. Rather,

my point is simply that the harassment cases understand the

10

B

White, which imposes an objectively material harm

requirement for retaliation claims under Title VII, cinches up

the case for Brown. The Court rendered two distinct holdings

in White. First, because section 704(a) contains no “terms,

conditions, or privileges of employment” requirement,

actionable retaliation may take the form of adverse action

outside the workplace. See 548 U.S. at 61–67. Second,

because section 704(a) requires the employer to “discriminate

against” the plaintiff, it “protects an individual not from all

retaliation, but from retaliation that produces an injury or

harm.” Id. at 67. The Court then spelled out the nature of the

requisite injury—the plaintiff “must show that a reasonable

employee would have found the challenged action materially

adverse, which in this context means it well might have

dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Id. at 68 (cleaned up and emphases

added). In justifying a “material adversity” standard, the Court

held it “important to separate significant from trivial harms,”

because Title VII “does not set forth ‘a general civility code for

the American workplace.’” Id. (quoting Oncale, 523 U.S. at

80). Likewise, an employee’s “decision to report

discriminatory behavior cannot immunize that employee from

those petty slights or minor annoyances that often take place at

work and that all employees experience.” Id. In justifying a

“reasonable employee” standard, the Court stressed that the

conditions-of-employment requirement to screen out claims for

objectively insubstantial injuries. For their part, my colleagues agree

that this requirement must be “reasonably construed” to prevent Title

VII from becoming a “‘general civility code’ for the workplace.” Id.

at 11 (quoting Oncale, 523 U.S. at 81). But they give no further

guidance on how to distinguish which employment actions are

material enough to affect the conditions of employment—the inquiry

that we have long performed under Brown.

11

assessment of harm “must be objective,” to avoid “unfair

discrepancies that can plague a judicial effort to determine a

plaintiff’s unusual subjective feelings” and to conform to the

“objective standards” used in other Title VII contexts such as

constructive discharge and hostile work environment. Id. at

68–69 (second emphasis added).

White’s second holding textually governs section

703(a)(1). Like section 704(a), section 703(a)(1) makes it

unlawful “to discriminate against” an individual for a

prohibited reason. The Supreme Court has long recognized a

“natural presumption that identical words used in different

parts of the same act are intended to have the same meaning.”

Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427,

433 (1932). Although defeasible by context, this presumption

of consistent usage applies most strongly where the two

provisions are closely connected. See, e.g., Mohasco Corp. v.

Silver, 447 U.S. 807, 826 (1980); A. Scalia & B. Garner,

Reading Law: The Interpretation of Legal Texts § 25, at 171–

73 (2012). Here, sections 703(a)(1) and 704(a) appear almost

immediately next to each other, at the beginning of the two

most prominent sections of Title VII. They share many

common words and phrases: Section 703, titled “Unlawful

employment practices,” states in its subsection (a) that “[i]t

shall be an unlawful employment practice for an employer—

(1) … to discriminate against any individual” with respect to

terms or conditions of employment “because of” the

individual’s protected characteristics. 42 U.S.C. § 2000e-

2(a)(1). Section 704, titled “Other unlawful employment

practices,” states in its subsection (a) that “[i]t shall be an

unlawful employment practice for an employer to discriminate

against” any employee or applicant for employment “because”

that person has been involved in enforcing Title VII. Id.

§ 2000e-3(a). And the provisions are linked thematically as

well as textually, given the Supreme Court’s holding that

12

retaliation based on complaints of discrimination is itself a

form of discrimination. Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167, 173–74 (2005). For these reasons, because

“discriminate against” requires an objectively material injury

as used in section 704(a), it also requires an objectively

material injury as used in section 703(a)(1).

White’s reasoning also carries over to section 703(a)(1).

As to materiality, the need “to separate significant from trivial

harms,” 548 U.S. at 68, applies to disparate-treatment claims

as well as to retaliation claims. To be sure, section 704(a)

applies to acts not affecting conditions of employment, and

thus is broader than section 703(a)(1) in that one respect. See

White, 548 U.S. at 61–63. But there is no necessary correlation

between whether an adverse act relates to employment and

whether it is substantial or trivial. Adverse acts outside the

workplace may be quite serious, such as filing false criminal

charges against an employee or failing to investigate death

threats against her. See id. at 63–64. And adverse acts inside

the workplace may be quite trivial, such as not allowing an

attorney to submit her draft briefs “directly to a top supervisor.”

Broderick, 437 F.3d at 1233. Moreover, White’s observation

that an “objective standard” of materiality “is judicially

administrable,” whereas a subjective one would produce

“uncertainties and unfair discrepancies,” applies equally to

harms alleged to flow from disparate treatment. See 548 U.S.

at 68–69. And White grounded its “objective standard” of harm

in the standards used “in other Title VII contexts” such as

constructive discharge and hostile environment, both of which

are actionable under section 703(a)(1). See id. at 69. 2

2

My colleagues treat White’s second holding (that retaliation

claims require an objectively material injury) as predicated on its first

holding (that retaliation can involve adverse action unrelated to

conditions of employment). Ante at 10–11. But the Court did not

13

White also sheds light on the appropriate treatment of cases

involving a reassignment of job responsibilities. The employee

in White had been reassigned from “forklift duty” to seemingly

less attractive “standard track laborer tasks” (which involved

janitorial functions like trash removal). 548 U.S. at 57, 70. The

Court acknowledged that reassignments often impose

objectively material harms, because “[a]lmost every job

category involves some responsibilities and duties that are less

desirable than others.” Id. at 70. Yet the Court also made clear

that the plaintiff must prove the harm in each case. It stressed

that “reassignment of job duties is not automatically

actionable.” Id. at 71. And building on its harassment

decisions, the Court explained that “[w]hether a particular

reassignment is materially adverse depends upon the

circumstances of the particular case, and ‘should be judged

from the perspective of a reasonable person in the plaintiff’s

position, considering all the circumstances.’” Id. (quoting

Oncale, 523 U.S. at 81) (cleaned up). Not surprisingly, the

Court found that material adversity in White itself was at least

a jury question, given the plaintiff’s evidence that the “forklift

operator position was objectively considered a better job,”

whereas the “track laborer duties were by all accounts more

arduous and dirtier.” Id. (cleaned up).

C

At a higher level of generality, Brown, White, and the

harassment cases simply spell out the contours of a statutory

injury requirement, which courts do routinely. For example,

the Supreme Court construes statutory causes of action

extending to anyone “injured … by reason of” a violation to

frame its second holding as a limitation on the first one. Instead, the

second holding interpreted the statutory phrase “discriminate

against,” see 548 U.S. at 59–60, 67, which limits the scope of both

section 704(a) and section 703(a)(1).

14

incorporate a background requirement of proximate causation.

See, e.g., Holmes v. SIPC, 503 U.S. 258, 265–70 (1992)

(RICO); Associated Gen. Contractors of Cal., Inc. v. Cal. State

Council of Carpenters, 459 U.S. 519, 529–35 (1983) (Clayton

Act). Likewise, although the Clayton Act on its face requires

only an injury, the Court unanimously has construed it to

require an “antitrust injury, which is to say injury of the type

the antitrust laws were intended to prevent and that flows from

that which makes defendants’ acts unlawful.” Brunswick Corp.

v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977); see also

Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334–45

(1990); Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104,

109–13 (1986). Although the Federal Employers Liability Act

provides a cause of action to “any person suffering injury” from

the negligence of a railroad while employed by the railroad, the

Court has held that emotional harms qualify as an “injury” only

if the plaintiff fell within a zone of physical danger. Consol.

Rail Corp. v. Gottshall, 512 U.S. 532, 542–57 (1994). The

Administrative Procedure Act provides a cause of action to any

person “aggrieved” by agency action—the same word used in

Title VII’s private right of action—but the Court has held the

plaintiff must fall “within the zone of interests to be protected

or regulated by the statute or constitutional guarantee in

question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

397 U.S. 150, 153 (1970). The Court has also held that this

zone-of-interest requirement “applies to all statutorily created

causes of action,” Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 129–30 (2014), including

section 706 and its “aggrievement requirement,” Thompson v.

N. Am. Stainless, LP, 562 U.S. 170, 176–78 (2011).

Materiality and objectivity requirements, even if not

explicitly spelled out in statutory text, are also common. The

Supreme Court routinely presumes that anti-fraud statutes

require materiality. Neder v. United States, 527 U.S. 1, 21–23

15

(1999); see Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757

(7th Cir. 2009) (“Materiality is an ordinary element of any

federal claim based on a false or misleading statement.”). And

objectivity requirements follow from materiality requirements,

which focus not on the idiosyncratic reactions of an individual

plaintiff, but on the likely reactions of a reasonable person. See

TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 445 (1976)

(“[t]he question of materiality, it is universally agreed, is an

objective one”). For example, consider the Fair Debt

Collection Practices Act, which prohibits making “any false,

deceptive, or misleading representation … in connection with

the collection of any debt.” 15 U.S.C. § 1692e. Despite the

statute’s double use of the word “any,” courts widely agree that

a misrepresentation must be material to be actionable, and the

materiality standard “is an objective one.” Jensen v. Pressler

& Pressler, 791 F.3d 413, 417–22 (3d Cir. 2015); see Elyazidi

v. SunTrust Bank, 780 F.3d 227, 234 (4th Cir. 2015).

* * * *

In sum, Brown’s construction of section 703(a)(1) is amply

supported by statutory text and numerous lines of Supreme

Court precedent. Among other things, Brown honors the

background maxim of de minimis non curat lex; it harmonizes

“otherwise to discriminate against” with the other covered

adverse actions; it tracks the harassment cases’ understanding

of “terms, conditions, or privileges of employment”; it tracks

White’s construction of “discriminate against” as used in

section 704(a); and it is consistent with the courts’ general

interpretive authority to spell out the metes and bounds of

express statutory injury requirements. For these reasons,

Brown was rightly decided.

16

IV

The question presented is not simply whether Brown was

rightly decided in 1999, but whether it should be overruled

more than two decades later. The answer is clearly no.

A

“Overruling precedent is never a small matter.” Kimble v.

Marvel Ent., LLC, 576 U.S. 446, 455 (2015). According to the

Supreme Court, doing so requires a “‘special justification’—

over and above the belief ‘that the precedent was wrongly

decided.’” Id. at 455–56 (quoting Halliburton Co. v. Erica P.

John Fund, Inc., 573 U.S. 258, 266 (2014)). We too have

recognized this basic principle of stare decisis. United States

v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012) (en banc);

Critical Mass Energy Project v. NRC, 975 F.2d 871, 875–76

(D.C. Cir. 1992) (en banc). The Supreme Court further has

stressed that “stare decisis carries enhanced force” for

decisions interpreting statutes, because “Congress can correct

any mistake it sees.” Kimble, 576 U.S. at 456; see Halliburton

Co., 573 U.S. at 274; Patterson v. McLean Credit Union, 491

U.S. 164, 172–73 (1989). We too have recognized the same

principle, Burwell, 690 F.3d at 504; Critical Mass, 975 F.2d at

875–76, which applies even more clearly to lower-court

decisions correctable by Congress or the Supreme Court.

An overwhelming judicial consensus counsels against

overruling Brown. When that case was decided, the authority

for its rule was already “wide and deep.” See Brown, 199 F.3d

at 455–56. Today the authority is vastly wider and deeper. As

explained above, we have applied Brown in many cases inside

and outside the job-transfer context, and our district court has

done so in scores if not hundreds more. Outside of this circuit,

the courts of appeals now unanimously agree that a plaintiff

must show objectively material harm to challenge a job transfer

17

under section 703(a)(1). See, e.g., Caraballo-Caraballo v.

Corr. Admin., 892 F.3d 53, 61 (1st Cir. 2018) (“We have

recognized on several occasions that a transfer may constitute

an adverse employment action.… However, not all transfers

will suffice.”); Williams v. R.H. Donnelley, Corp., 368 F.3d

123, 128 (2d Cir. 2004) (Sotomayor, J.) (“Williams thus must

establish that Donnelley’s denial of her request for a transfer

created a materially significant disadvantage in her working

conditions.”); Oguejiofo v. Bank of Tokyo Mitsubishi UFJ Ltd,

704 F. App’x 164, 168 (3d Cir. 2017) (plaintiff “failed to

demonstrate that the lateral transfer was sufficiently material

so as to qualify as adverse for purposes of his prima facie

case”); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,

376 (4th Cir. 2004) (reassignment is not actionable without

“some significant detrimental effect” (cleaned up)); Pegram v.

Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004) (“under

Title VII principles, an employment transfer may qualify as an

adverse employment action if the change makes the job

objectively worse” (cleaned up)); Deleon v. Kalamazoo Cnty.

Rd. Comm’n, 739 F.3d 914, 918 (6th Cir. 2014) (“a

reassignment without salary or work hour changes” is

actionable if accompanied by “a less distinguished title, a

material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to a

particular situation” (cleaned up)); O’Neal v. City of Chicago,

392 F.3d 909, 913 (7th Cir. 2004) (“To sustain a federal

employment discrimination suit, a plaintiff must show

something more than the ordinary difficulties associated with a

job transfer.”); Ledergerber v. Stangler, 122 F.3d 1142, 1144

(8th Cir. 1997) (“A transfer involving only minor changes in

working conditions and no reduction in pay or benefits will not

constitute an adverse employment action.”); Chuang v. Univ.

of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir. 2000)

(failure to respond to grievances “did not materially affect the

compensation, terms, conditions, or privileges of the

18

[plaintiffs’] employment”); Sanchez v. Denver Pub. Schs., 164

F.3d 527, 532 n.6 (10th Cir. 1998) (“If a transfer is truly lateral

and involves no significant changes in an employee’s

conditions of employment, the fact that the employee views the

transfer either positively or negatively does not of itself render

the denial or receipt of the transfer adverse employment

action.”); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1204 n.11

(11th Cir. 2013) (“it’s a rare case where a change in

employment responsibilities qualifies as an adverse

employment action”). Moreover, “hundreds if not thousands

of decisions” have stated that an “adverse employment action,”

which is shorthand for an action with a material impact on the

terms or conditions of employment, is “essential” to making

out a prima facie case of discrimination under McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Threat, 6

F.4th at 678–79; Minor v. Centocor, Inc., 457 F.3d 632, 634

(7th Cir. 2006). The sample string-cite set out above could thus

easily be expanded to go on for pages. And before today’s

decision, no contrary authority existed.

Despite this mountain of authority, Congress has

expressed no dissatisfaction with Brown or its out-of-circuit

counterparts. Since 1964, it has amended Title VII on several

occasions, including three times to overrule at least ten judicial

decisions of which it disapproved. See Lilly Ledbetter Fair Pay

Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (overruling

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618

(2007)); Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071 (overruling eight decisions, as described in Landgraf

v. USI Film Prods., 511 U.S. 244, 250–51 (1994)); Pregnancy

Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076

(overruling Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976)).

The fact that “Congress has spurned multiple opportunities” to

overrule the Brown line of cases cuts against our doing so.

Kimble, 576 U.S. at 456; see Watson v. United States, 552 U.S.

19

74, 82–83 (2007). To be sure, some justices have raised strong

objections to inferring acquiescence based on congressional

silence. See, e.g., Johnson v. Transp. Agency, 480 U.S. 616,

671–72 (1987) (Scalia, J., dissenting). And one astute

commentator has explained that such an inference is more

tenuous where lower-court decisions are at issue. Barrett,

Statutory Stare Decisis in the Courts of Appeals, 73 Geo.

Wash. L. Rev. 317, 331–35 (2005). But if there was ever a case

for attributing interpretive significance to congressional silence

in the face of lower-court decisions, this is it—with decades-

long unanimity, reaching into every circuit and extending over

hundreds of cases, in addressing the core provision of one of

the most visible statutes in the entire United States Code. See

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200–01

(1974) (“continued congressional silence” has force where the

circuits had interpreted a statute with “almost perfect

consistency” for “nearly four decades”). And even attributing

no affirmative significance to congressional silence in this

case, the breadth and depth of support for Brown is itself good

reason to proceed with care.

B

My colleagues give three reasons for overruling Brown

despite all of this. None is persuasive.

1

My colleagues would overrule Brown because they view

it as “fundamentally flawed.” Ante at 16. The short answer is

that Brown is not flawed at all, much less fundamentally so.

Yet even if Brown were fundamentally flawed, that would

hardly be a sufficient ground for overruling it. As noted above,

the Supreme Court requires a “special justification” for

overruling precedent, apart from its having been wrongly

decided. See, e.g., Kimble, 576 U.S. at 455–56. Justice

20

Thomas has forcefully laid out the competing view that

precedent should be overruled, without anything more, if it is

“demonstrably erroneous.” Gamble v. United States, 139 S. Ct.

1960, 1981 (2019) (Thomas, J., concurring). But the Supreme

Court has not yet accepted this view, and so neither may we.

As mentioned, our cases have also recognized that

overruling precedent requires a “special justification” apart

from strong disagreement with the merits. Burwell, 690 F.3d

at 504; Critical Mass, 975 F.2d at 875–76. To be sure, these

same decisions, together with Allegheny Defense Project v.

FERC, 964 F.3d 1 (D.C. Cir. 2020) (en banc), suggest that

precedent may be overruled simply because it is

“fundamentally flawed.” See id. at 18. But Burwell and

Critical Mass both declined to overrule precedents. See 690

F.3d at 516; 975 F.2d at 875–77. And Allegheny overruled a

statutory precedent not only because we viewed it as wrongly

decided, but also because a later Supreme Court decision

contradicted it on the exact question presented—whether an

agency should receive deference in interpreting statutes

addressed to federal-court jurisdiction. See 964 F.3d at 18

(citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–50

(1990)). To my knowledge, our only decision overruling

circuit precedent based solely on a view that it was wrong is

Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d

1516, 1518–25 (D.C. Cir. 1988) (en banc). But the precedent

at issue there was only four years old, and it had nothing like

the breadth and depth of support for Brown. Moreover,

Cumberland Mountains can hardly be taken as itself a

persuasive precedent on precedent, for the Court’s analysis

contained not a single word about stare decisis.

My colleagues view Brown as inconsistent with the

Supreme Court’s increasing emphasis on the primacy of

statutory text. Ante at 16–17 (citing Allegheny, 964 F.3d at 18).

21

They describe this as a fundamental flaw with Brown, whereas

Allegheny had framed a similar concern as one of inconsistency

with intervening precedent. Either way, this methodological

criticism of old precedents cannot be enough to justify their

overruling. For many past decades, we were not all textualists. 3

Under the “ancien regime,” the Supreme Court often created

private rights of action with little basis in statutory text.

Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (citing J.I.

Case Co. v. Borak, 377 U.S. 426, 433 (1964)). It often looked

to legislative history before statutory text. See, e.g., Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29

(1971). And it often divined statutory “spirit” to expand or

contract statutes beyond their most natural reading, including

in a landmark decision interpreting section 703(a)(1) itself.

United Steelworkers of Am. v. Weber, 443 U.S. 193, 201 (1979)

(quoting Church of the Holy Trinity v. United States, 143 U.S.

457, 459 (1892)). In this “bygone era,” this Court likewise

followed a “more freewheeling approach to statutory

construction.” Wooden v. United States, 142 S. Ct. 1063, 1085

(2022) (Gorsuch, J., concurring in the judgment) (cleaned up).

Many of our cases recognized implied rights of action, e.g.,

Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416,

419–25 (D.C. Cir. 1992); Wachovia Bank & Tr. Co., N.A. v.

Nat’l Student Mktg. Corp., 650 F.2d 342, 353 (D.C. Cir. 1980);

relied mainly on legislative history, e.g., NRDC, Inc. v. Costle,

568 F.2d 1369, 1373 (D.C. Cir. 1977); NRDC, Inc. v. Train,

510 F.2d 692, 698–702 (D.C. Cir. 1974); or freely consulted

statutory “spirit,” e.g., Gen. Serv. Emps. Union Loc. No. 73 v.

NLRB, 578 F.2d 361, 366–67 (D.C. Cir. 1978); Manoukian v.

Tomasian, 237 F.2d 211, 213–14 (D.C. Cir. 1956). Are all such

3

Cf. Harvard Law School, The Antonin Scalia Lecture Series:

A Dialogue with Justice Elena Kagan on the Reading of Statutes,

YouTube at 08:28 (Nov. 25, 2015), https://www.youtube.

com/watch?v=dpEtszFT0Tg (“We are all textualists now.”).

22

precedents now to be overruled, either as fundamentally flawed

or as inconsistent with the New Textualism? If so, our en banc

Court will be very busy indeed.

2

My colleagues next contend that intervening cases have

substantially weakened Brown. Ante at 17. But the passage of

time has only made Brown stronger. Circuit after circuit has

followed its rule. And White strongly reinforced Brown by

construing the phrase “discriminate against” in section 704(a)

to incorporate the same objectively material injury requirement

that Brown held was present in section 703(a)(1).

My colleagues argue that White undercut Brown in a

different way. They reason that Brown invoked Ellerth as

support for requiring section 703(a)(1) plaintiffs to prove

tangible injury, whereas White later described Ellerth as

requiring such an injury only to identify when an employer is

automatically liable for the workplace harassment of a

supervisor. Ante at 8–9. Brown was imprecise in framing a

rule requiring “materially adverse consequences” producing an

“objectively tangible harm,” 199 F.3d at 457 (emphasis added),

rather than one requiring a harm that is material when viewed

objectively, the key elements that I have discussed and

defended above. But this garbling was introduced by Ellerth,

not Brown, and the misleading adjective tangible has proven

harmless in our Brown jurisprudence. Also, none of this

undercuts Brown’s invocation of Ellerth, or White’s

reinforcement of Brown.

To unpack all this, consider the sequence of relevant cases.

Before Ellerth was decided, there were already legions of cases

holding that a plaintiff challenging a job transfer as

discriminatory must prove some objectively material harm.

See, e.g., Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885

23

(6th Cir. 1996) (“reassignments without salary or work hour

changes do not ordinarily constitute adverse employment

decisions in employment discrimination claims”); Flaherty v.

Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994) (Age

Discrimination in Employment Act does not cover “changes in

duties or working conditions that cause no materially

significant disadvantage to an older employee” (cleaned up));

Crady v. Liberty Nat’l Bank & Tr. Co. of Ind., 993 F.2d 132,

136 (7th Cir. 1993) (“a materially adverse change in the terms

and conditions of employment must be more disruptive than a

mere inconvenience or an alteration of job responsibilities”);

Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th

Cir. 1994) (“Changes in duties or working conditions that cause

no materially significant disadvantage, such as Harlston’s

reassignment, are insufficient to establish the adverse conduct

required to make a prima facie case.”).

Next in the sequence came Ellerth—which did, as White

would later explain, address the question of vicarious liability.

The Court used tangible to describe the harassing acts of a

supervisor for which an employer is automatically liable—i.e.,

those fairly treated as official acts of the employer itself. 524

U.S. at 761–62. In doing so, it described the four cases cited

above as illustrating the “concept of a tangible employment

action,” and then deemed it “prudent to import the concept of

a tangible employment action for resolution of the vicarious

liability issue.” Id. at 761. Ellerth thus introduced some

confusion between “tangible” as a synonym for “material,” the

standard used in the prior cases to determine the substantive

scope of section 703(a)(1) and its analogs in other anti-

discrimination statutes, and “tangible” as shorthand for official

acts that make an employer automatically liable.

Next came Brown. First, it correctly cited the four cases

noted above (plus twelve others) for the proposition that “the

24

authority requiring a clear showing of adversity in employee

transfer decisions is both wide and deep.” 199 F.3d at 455–56.

Brown then claimed that Ellerth had “reinforced” this authority

by invoking it to “announce[] a ‘tangible employment action’

standard in cases of vicarious liability.” Id. There was nothing

wrong with this reasoning; Brown correctly summarized

Ellerth, and the Supreme Court’s extending a line of cases from

one context to another does tend to reinforce the cases. Finally,

Brown announced its “rule” that a lateral transfer is actionable

only if the employee suffers “materially adverse”

consequences producing “objectively tangible” harm. Id. at

457. In context, this formulation seems to reflect nothing more

than Ellerth’s ambiguous use of tangible. To be sure, it would

have been wrong for Brown to announce a categorical rule that

only “tangible” harms are actionable under section 703(a)(1),

for the hostile-environment cases prove otherwise. But Brown

announced no such rule. To the contrary, it carefully explained

that “[a]fter Meritor, plaintiffs could maintain an action even

in the absence of a tangible economic effect on employment,”

if they were subjected to sufficiently severe harassing conduct.

Id. at 454. The key takeaway is that Brown’s reference to

“objectively tangible” harm (as opposed to objectively material

harm) reflects some muddling from Ellerth and has had no

distorting effect on Brown’s materiality-based jurisprudence.

Last came White, which clarified that Ellerth had used the

concept of a “tangible employment action” only to decide when

an employer should be held automatically liable for the

harassment of a supervisor, without addressing other questions

under section 703(a)(1) or any question under section 704. 548

U.S. at 64–65. The clarification does not undercut Brown’s

point that Ellerth, by extending “wide and deep authority” from

the disparate-treatment context to the context of vicarious

liability for harassment, tended to strengthen that authority.

Nor does it say anything about White’s recognition of an

25

objectively material harm standard for retaliation cases, which

affirmatively reinforces Brown as explained above.

3

Finally, my colleagues contend that Brown has proven un-

administrable. Surveying the vast bulk of precedent applying

the Brown rule, they portray the relevant law as chaotic, and

the courts as speaking “with discordant voices.” Ante at 17.

My colleagues significantly overstate the extent of any

conflict. For example, they suggest that the Fifth Circuit stands

alone in requiring the plaintiff to prove an “ultimate”

employment decision. Ante at 17; see McCoy v. City of

Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (per curiam).

But the Fifth Circuit classifies transfers as actionable

demotions “if the new position proves objectively worse—such

as being less prestigious or less interesting or providing less

room for advancement.” Alvarado v. Texas Rangers, 492 F.3d

605, 612–13 (5th Cir. 2007) (cleaned up). In substance, that is

the Brown rule. My colleagues suggest that two cases from the

Seventh Circuit set the injury bar distinctively high. Ante at

18; see EEOC v. AutoZone, Inc., 860 F.3d 564 (7th Cir. 2017);

Place v. Abbott Lab’ys, 215 F.3d 803 (7th Cir. 2000). But the

Seventh Circuit recognizes that “adverse actions can come in

many shapes and sizes,” so transferring an employee to “a more

unfriendly working environment” might constitute an

actionable injury, depending on the circumstances. Place, 215

F.3d at 810 (quoting Knox v. Indiana, 93 F.3d 1327, 1334 (7th

Cir. 1996)). Likewise, my colleagues suggest that Threat,

which held that a challenged transfer to the night shift was

actionable, conflicts with other decisions rejecting challenges

to shift transfers. Ante at 18–19; see 6 F.4th at 679–80. But

Threat announced no broad rule that all shift-transfer claims

are actionable. Instead, it expressly disclaimed any such

26

“categorical rule,” because “[n]ot all shift changes are the

same.” Id. at 679. It is hardly surprising that different courts,

applying a qualitative requirement of objectively material

injury, have reached different results on different facts in

different cases. And even if there were narrow disagreements

about whether specific harms qualify as objectively material

injuries, that would hardly justify what we do today—create an

eleven-to-one split on the anterior, much broader question

whether the plaintiff must prove such an injury at all.

The administrability objection suffers from a further

problem. An inquiry into whether a transfer caused the

plaintiff an objectively material harm is precisely what White

requires for retaliation claims under section 704(a). If that

inquiry can and must be managed, then so too can the same

inquiry for disparate-treatment claims under section 703(a)(1).

Indeed, some of the cases that my colleagues invoke to show

unmanageability involve the White-mandated inquiry for

actionable injury under section 704(a). E.g., Forkkio, 306 F.3d

at 1131–32; Halcomb v. Off. of the Senate Sergeant-at-Arms,

563 F. Supp. 2d 228, 239, 245–49 (D.D.C. 2008). And in many

cases, including this one, the same acts are alleged to be both

discriminatory and retaliatory. There is no theoretical or

practical reason why we should make the materiality inquiry in

one context but not the other.

V

Finally, a few words about the breadth and consequences

of today’s decision. My colleagues acknowledge that Title VII

must not become a “general civility code” for the workplace.

Ante at 11. To that end, they limit today’s decision in some

respects: By its terms, the decision applies only to “job

transfers” as opposed to other, less significant workplace

actions. Id. at 20. My colleagues reserve whether the de

27

minimis canon narrows the range of actionable injuries under

section 703(a)(1). Id. at 8. They assure us that the “terms,

conditions, or privileges of employment” requirement can be

“reasonably construed” to weed out insubstantial claims. Id. at

11. And they remind us that the plaintiff still must prove the

employer undertook the challenged action for a prohibited

reason. Id. at 13–14. But the logic of Brown extends well

beyond transfers, and we currently have no precedent on how

to apply the de minimis canon here or how to construe the

“terms, conditions, or privileges of employment” requirement

outside the context of hostile-environment claims. Finally, the

requirements for proving discriminatory intent are both modest

and unrelated to the question whether any injury is objectively

substantial. So today’s decision may well be sweeping, and it

certainly will be destabilizing.

A

In focusing on job transfers, the decision has at least

superficial appeal. Surely in most cases, an unwanted transfer

to a new position, or the denial of a wanted transfer, will inflict

some objectively material harm on an employee. And if so,

why not simplify things by dispensing with the need to prove

an injury for this category of employment actions?

As with much in this appeal, the simplest answer is White.

The Court there recognized that cases involving “reassignment

of job duties” are very likely, as a group, to create objectively

material injuries. See 548 U.S. at 70 (“Almost every job

category involves some responsibilities and duties that are less

desirable than others.”). Yet the Court nonetheless held that

“reassignment of job duties is not automatically actionable,”

and so the requisite harm must be proven in “the circumstances

of the particular case.” Id. at 71.

28

Our own experience with Brown highlights the differences

among transfer cases. Most job-transfer plaintiffs have

suffered some objectively material injury and can readily prove

it. See, e.g., Ortiz-Diaz, 867 F.3d at 74; Pardo-Kronemann,

601 F.3d at 608; Ginger, 527 F.3d at 1344. But some plaintiffs

have suffered no such harm: one whose transfer simply cut him

out of certain meetings and e-mails, see Forkkio, 306 F.3d at

1131; another who “went from a position before the [reduction

in force] with no duties to a position after the RIF with some

duties,” see Currier, 304 F.3d at 88–89; and a third whose

transfer caused only “minor changes in work-related duties or

opportunities,” see Stewart, 275 F.3d at 1135. Other plaintiffs

allege, but cannot prove, objectively material harms. For

example, Chambers argued that the denial of her requested

transfer “resulted in lost awards and career advancement

opportunities.” 988 F.3d at 501. That would be an actionable

injury under Brown, but Chambers failed to prove the

allegation. See id. at 502. Similarly, Chambers argued that the

transfer denial forced her to remain in an “unbearable”

situation with a “disproportionate” number of cases. Id. That

might satisfy Brown if the workload difference was significant,

but Chambers failed to prove that her caseload would be any

lower in the unit to which she had sought a transfer. See id.

B

Broadening the focus, job transfers are not a distinct

category of employment actions, either legally or factually.

Legally, section 703(a)(1) covers discriminatory decisions “to

fail or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual” in the terms or

conditions of employment. 42 U.S.C. § 2000e-2(a)(1). So

there is no textual basis for categorically distinguishing

between transfers and anything else covered by the phrase “or

otherwise to discriminate.” Nor is there any sharp factual

29

distinction between transfers and other kinds of decisions

affecting an employee’s day-to-day work.

My colleagues confine today’s decision to cases involving

“the transfer of an employee to a new role, unit, or location.”

Ante at 5–6. But this raises its own set of line-drawing

challenges. To qualify as such a transfer, does the move have

to be permanent? If not, for how long must it last? How much

does the job have to change to constitute a “new role”? My

colleagues tell us that a transfer from selling sporting goods to

selling power tools at the same department store would qualify,

id. at 13–14, but what about a transfer from selling sports

equipment to sportswear? Or from selling hunting rifles to

pistols? Or snow skis to snowboards? Must the positions in

question be formally different, or is it enough that the employer

simply imposes a change of duties within the employee’s

current job description? If the job description stays the same

but the supervisor changes, is that a “new unit”? What if

employers broadly define the scope of a position, so that many

duties can be part of that job as opposed to a transfer? Rather

than creating this artificial distinction between transfers and

everything else, it seems simpler to ask more directly the

question that matters most—whether the change at issue has

materially harmed the employee. 4

4

My colleagues characterize transfer refusals as the “functional

equivalent” of a refusal to hire “for a particular position.” Ante at 6–

7. That is certainly a plausible characterization of many transfer

refusals, which is why plaintiffs challenging such refusals have

generally cleared the Brown hurdle. See supra at 4–5. But it does

not seem to me a plausible characterization of edge cases like, say, a

compelled or refused transfer from selling snow skis to snowboards.

As explained above, the analysis of such cases should turn on

whether the compelled or denied transfer inflicts an objectively

30

Moreover, neither the logic of Brown itself, nor the logic

of today’s opinion overruling it, can be limited to the artificial

category of job transfers. Simplifying a bit, the core argument

for Brown is that the statutory phrases “discriminate against,”

“terms, conditions, or privileges of employment,” and

“aggrieved” incorporate an objectively material injury

requirement. In overruling Brown, my colleagues reject that

proposition and reserve only the possibility of a de minimis

exception. None of these interpretive disputes turns on the

distinction between job transfers and other kinds of

employment actions. So the limitation of today’s decision to

transfers seems to me illusory on the law, on the facts, and on

my colleagues’ own reasoning.

C

If extended beyond the vague category of job transfers,

today’s decision would be revolutionary. As noted above, we

repeatedly have applied Brown to screen out cases involving

objectively insubstantial injuries alleged to flow from garden-

variety workplace assignments and interactions. See Baird,

662 F.3d at 1248 (critical comments and shouting); Douglas,

559 F.3d at 553 (failure to recommend for award); Patterson,

505 F.3d at 1298 (employee subjectively “fe[lt] undermined”

(cleaned up)); Broderick, 437 F.3d at 1233 (lost opportunity to

submit briefs “directly to a top supervisor”); Taylor, 350 F.3d

at 1292–93 (placement on performance improvement plan);

Russell, 257 F.3d at 818–19 (poor performance rating). District

judges in our circuit have applied Brown to do likewise. See,

e.g., Guillen-Perez v. District of Columbia, 415 F. Supp. 3d 50,

58 (D.D.C. 2019) (scheduling decisions, increased scrutiny,

and verbal criticism); Allen v. Napolitano, 943 F. Supp. 2d 40,

45–46 (D.D.C. 2013) (conducting meetings without an

material harm on the employee, not on how the employer formally

classifies the positions or job duties at issue.

31

employee); Hunter v. District of Columbia, 905 F. Supp. 2d

364, 374 (D.D.C. 2012) (10 days of paid administrative leave

and required fitness examination); Kelly v. Mills, 677 F. Supp.

2d 206, 221 (D.D.C. 2010) (supervisor’s failure to speak

Spanish, leave handwritten notes, or invite employee into his

office); Halcomb, 563 F. Supp. 2d at 241 (low performance

ratings and increased supervision); Hunter v. Rice, 480 F.

Supp. 2d 125, 132–33 (D.D.C. 2007) (refusing to increase

signing authority for grants); Edwards v. EPA, 456 F. Supp. 2d

72, 85 (D.D.C. 2006) (denial of single training or travel

opportunity); Rhodes v. Chertoff, Civ. A. No. 04-1715, 2005

WL 3273566, at *6 (D.D.C. Aug. 4, 2005) (oral counseling for

poor performance); Moncrief v. Daro Realty, Inc., Civ. A. No.

03-762, 2005 WL 1119794, at *11 (D.D.C. Apr. 28, 2005)

(failure to provide company cell phone); Dobbs v. Roche, 329

F. Supp. 2d 33, 42 (D.D.C. 2004) (change in duties over three-

month transition period); Brodetski v. Duffey, 141 F. Supp. 2d

35, 45 (D.D.C. 2001) (uneven workload distribution). At oral

argument, we discussed hypotheticals involving everything

from coffee duty to the assignment of offices with windows.

These are just some of the ordinary workplace snubs that

Brown and White would screen out as “petty slights or minor

annoyances that often take place at work and that all employees

experience.” White, 548 U.S. at 68. Yet now, they all may

support litigation under Title VII and various similarly worded

statutes such as the ADEA and the Americans with Disabilities

Act. See Brown, 199 F.3d at 456 n.10. 5 Even with Brown in

5

My colleagues invoke the very different hypothetical of an

employer hosting a weekly doughnut day and hanging a “whites

only” sign over the doughnuts. Ante at 13. Although evocative, this

one is unrelated to any case decided under Brown. And for good

reason: Such an employer would violate section 703(a)(1), which

prohibits “the practice of creating a working environment heavily

32

place, employees annually file more than 60,000 charges with

the EEOC and more than 10,000 discrimination cases in court.

U.S. District Courts—Civil Cases Commenced, by Basis of

Jurisdiction and Nature of Suit, U.S. Courts (Dec. 31, 2021);

EEOC, Charge Statistics FY 1997 Through FY 2021. Without

a meaningful injury requirement, who knows how much those

numbers will increase?

The requirement to prove discriminatory intent will not

solve this problem. Bad intent is easy to allege, and intent is

much harder to assess early on than is the question whether an

alleged injury is objectively material. Consider the familiar

doctrines governing proof of intent. At the pleading stage, a

Title VII plaintiff need not even allege a prima facie case.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). On a

motion to dismiss, the court must accept the truth of all factual

allegations, and the inference of bad intent need only be

“plausible”—a modest standard falling well short of more

likely than not. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

After the motion-to-dismiss stage, the burden-shifting

framework of McDonnell Douglas complicates things even

more. Under that framework, the “burden of establishing a

prima facie case of disparate treatment is not onerous.” Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

And once an employee carries this burden, the employer will

lose the case—as a matter of law—unless it can produce

evidence of a “legitimate, nondiscriminatory reason” for its

action. Id. at 254. This framework is sensible enough for

assessing the intent behind significant actions such as hiring or

firing, which employers can reasonably be expected to

document with care. But for claims that Brown would have

screened out as immaterial, this is highly unrealistic. Must an

charged with ethnic or racial discrimination.” Meritor, 477 U.S. at

66 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

33

employer really document the reasons for every workplace

interaction from temporary assignments to scheduling

decisions? How can an employer possibly reconstruct, in

litigation months if not years after the fact, the “legitimate,

nondiscriminatory reason” for any such miniscule decision?

And because intent is often hard to prove or disprove, a

frustrated employee might as well take his chances in litigation.

A screen for objectively insubstantial injury is thus necessary

to keep Title VII claims within manageable limits.

To close the floodgates, my colleagues stress that not all

workplace interactions involve terms, conditions, or privileges

of employment, and they dangle the possibility that de minimis

injuries may not be actionable in any event. But precisely

because we have screened out objectively insubstantial claims

under Brown for more than two decades, we have not had

occasion to build up, in this context, a jurisprudence directly

resting on de minimis non curat lex. Likewise, our extant

caselaw has imposed limits on what counts as terms,

conditions, or privileges of employment only in the specific

context of hostile-environment claims. So what happens next,

as courts in non-transfer cases are confronted with claims that

Brown would have screened out for lack of an objectively

material injury? Instead of saying “the injury is not actionable

under Brown,” may a judge instead simply say “the injury is de

minimis under Wisconsin v. Wrigley” or “the injury is not

substantial enough to affect a condition of employment”?

Automatically exporting Brown standards to either context

would seem in tension with the spirit if not the letter of today’s

opinion, which does not confirm even the existence of a de

minimis exception. But preventing the export of Brown

standards to either context would negate my colleagues’

promise of manageable limits. And leaving everything to be

decided afresh, under a new de minimis jurisprudence or a new,

non-harassment terms-and-conditions jurisprudence, would

34

eliminate two decades of judicial experience in distinguishing

substantial harms from insubstantial ones.

Why create this degree of uncertainty? My colleagues

worry that Brown has screened out too much. Yet as shown

above, it has screened out relatively few claims arising from

clear job transfers as opposed to lesser kinds of employment

actions. Perhaps, as my colleagues assert, some job-transfer

cases have applied Brown too stringently. Ante at 8. But any

such cases are the exception, not the rule. Rather than

jettisoning two decades of our Title VII jurisprudence and

starting over from scratch, I would have simply reminded the

courts that the requirement of an objectively material injury,

although important, is not especially onerous.

VI

The Court badly errs in overruling Brown, and so I

respectfully dissent.