Amicus Curiae Brief — David D. Peterson, Petitioner v. Linear Controls, Inc.

No. 18-1401

IN THE

DAVID D. PETERSON, Petitioner,

v.

LINEAR CONTROLS, INCORPORATED, Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF BRIAN WOLFMAN, ADERSON B.

FRANCOIS, AND ERIC SCHNAPPER AS AMICI

CURIAE IN SUPPORT OF PETITIONER

Aderson B. Francois

GEORGETOWN LAW

CIVIL RIGHTS CLINIC

AND VOTING RIGHTS

INSTITUTE

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 661-6721

Brian Wolfman

Counsel of Record

Bradley Girard

GEORGETOWN LAW

APPELLATE COURTS

IMMERSION CLINIC

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 661-6582

wolfmanb@georgetown.edu

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................iii

INTEREST OF AMICI ................................................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 2

I. Title VII prohibits a broad range of

discriminatory employment practices. ................. 3

A. The term “adverse employment action”

started as useful shorthand for Title VII’s

text, but courts later gave the term an

impermissibly restrictive meaning. ............... 3

B. Title VII’s text and this Court’s precedent

demonstrate that the Act prohibits a broad

range of discriminatory employment

practices. ......................................................... 5

II. The Fifth Circuit’s impermissibly narrow

ulimate-employment-decision

standard

authorizes discrimination that other circuits

rightly find actionable. ........................................ 10

A. Office settings and working conditions ....... 11

B. Transfers and changes in duties or shifts ... 13

C. Actions with consequences for future

employment .................................................. 14

D. Employment prerequisites ........................... 16

E. Leaving the workplace ................................. 17

F. Disproportionately heavy workload ............ 17

ii

III. Title VII's disparate-treatment prohibition

outlaws any discriminatory conduct or

practice attributable to the employer that

causes the employee meaningful harm. ............. 19

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Abboud v. Cty. of Onondaga,

341 F. Supp. 3d 164 (N.D.N.Y. 2018) .................. 14

Alvarado v. Texas Rangers,

492 F.3d 605 (5th Cir. 2007) .......................... 13, 14

Artis v. D.C.,

138 S. Ct. 594 (2018) .............................................. 5

Baltzer v. City of Sun Prairie Police Dep’t,

725 F. Supp. 1008 (W.D. Wis. 1989) .............. 14, 15

Burlington Indus., Inc. v. Ellerth,

524 U.S. 742 (1998) .............................................. 21

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006) .................................................. 1

Davis v. Team Elec. Co.,

520 F.3d 1080 (9th Cir. 2008) .............................. 18

E.E.O.C. v. Abercrombie & Fitch Stores, Inc.,

135 S. Ct. 2028 (2015) .......................................... 10

Franks v. Bowman Trans. Co.,

424 U.S. 747 (1976) ................................................ 9

Harris v. Forklift Sys., Inc.,

510 U.S. 17 (1993) ................................................ 10

Hishon v. King & Spalding,

467 U.S. 69 (1984) ............................................ 9, 10

iv

Jefferies v. Harris Cty. Cmty. Action Ass’n,

615 F.2d 1025 (5th Cir. 1980) ................................ 4

Leftwich v. U.S. Steel Corp.,

470 F. Supp. 758 (W.D. Pa. 1979) .......................... 4

Lopez v. Kempthorne,

684 F. Supp. 2d 827 (S.D. Tex. 2010) .................. 15

Los Angeles Dep’t of Water & Power v. Manhart,

435 U.S. 702 (1978) ................................................ 9

McCoy v. City of Shreveport,

492 F.3d 551 (5th Cir. 2007) ...................... 4, 12, 17

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ............................................ 8, 9

Merit Mgmt. Grp., LP v. FTI Consulting, Inc.,

138 S. Ct. 883 (2018) .............................................. 7

Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57 (1986) ................................................ 10

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) .............................................. 5

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) ................................................ 10

Pothen v. Stony Brook Univ.,

211 F. Supp. 3d 486 (E.D.N.Y. 2016)................... 18

Puleo v. Texana MHMR Ctr.,

187 F. Supp. 3d 769 (S.D. Tex. 2016) .................. 15

v

Reynaga v. Roseburg Forest Prods.,

847 F.3d 678 (9th Cir. 2017) ................................ 12

Rodriguez v. Bd. of Educ. of Eastchester

Union Free Sch. Dist.,

620 F.2d 362 (2d Cir. 1980).................................. 13

Shultz v. Congregation Shearith Israel of

City of New York,

867 F.3d 298 (2d Cir. 2017).................................. 17

Soni v. Wespiser,

239 F. Supp. 3d 373 (D. Mass. 2017) ................... 15

St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 (1993) ............................................ 21

Supinger v. Virginia,

167 F. Supp. 3d 795 (W.D. Va. 2016) ............ 13, 14

Tex. Dep’t Cmty. Affairs v. Burdine,

450 U.S. 248 (1981) .............................................. 21

Thompson v. City of Waco,

764 F.3d 500 (5th Cir. 2014) ............................ 4, 15

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) .................................................. 9

Tuli v. Brigham & Women’s Hosp., Inc.,

566 F. Supp. 2d 32 (D. Mass. 2008), aff’d,

656 F.3d 33 (1st Cir. 2011)................................... 16

Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72 (2d Cir. 2015).................................... 17

vi

Wedow v. City of Kansas City,

442 F.3d 661 (8th Cir. 2006) .......................... 11, 12

Wis. Dep’t of Revenue v. William Wrigley, Jr., Co.,

505 U.S. 214 (1992) .............................................. 20

Womack v. Munson,

619 F.2d 1292 (8th Cir. 1980) ................................ 4

Statute

42 U.S.C. § 2000e-2(a)(1) ....................... 3, 4, 5, 7, 8, 19

Other Authorities

Black’s Law Dictionary (10th ed. 2014) .................. 6, 7

George, Autumn, Comment, “Adverse

Employment Action” How Much Harm

Must be Shown to Sustain a Claim of

Discrimination Under Title VII?,

60 Mercer L. Rev. 1075 (2009) ............................... 4

H.R. Rep. No. 88-914 (1963) ........................................ 6

Oxford English Dictionary ............................ 6, 7, 8, 19

Oxford Living Dictionary ............................................ 7

Title VII, U.S. Equal Emp’t Opportunity

Comm’n, Legislative History of Titles VII

and IX of Civil Rights Act of 1964 (1968) .......... 6, 8

INTEREST OF AMICI1

Amicus Brian Wolfman is Associate Professor of

Law and Director of the Appellate Courts Immersion

Clinic at Georgetown University Law Center (GULC).

For five years, he directed a GULC clinic that

represented Title VII plaintiffs and litigated the

question presented here: what types of employer

conduct and practices are prohibited employment

discrimination under Title VII. Amicus Aderson B.

Francois is Professor of Law and Director of GULC’s

Civil Rights Clinic. He litigates Title VII cases, and he

has written extensively on topics of racial justice.

Amicus Eric Schnapper is a Seattle attorney who

regularly represents plaintiffs in Title VII actions in

this Court and in the lower courts. He was counsel for

respondent in Burlington Northern & Santa Fe

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

Amici have a deep and abiding interest that Title

VII be interpreted to eliminate employment

discrimination in all of its forms, as demanded by the

statute’s text and purposes. Because the Fifth

Circuit’s decision below—which limits prohibited

employment discrimination to “ultimate employment

decisions” alone, Pet. App. 4a, such as those involving

hiring, firing, and compensation—flouts the text and

undermines Congress’s purposes, this Court should

grant review and reverse.

1

Counsel of record for all parties received notice at least

ten days prior to the due date of amici’s intention to file this brief.

The parties have consented to this filing. No counsel for a party

authored this brief in whole or in part, and no person other than

amici, its members, or its counsel made a monetary contribution

to the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

I. In Title VII disparate-treatment, employmentdiscrimination cases, the term “adverse employment

action” developed as judicial shorthand for the

statute’s text. But what started as shorthand has

taken on a life of its own and now improperly limits

the statute’s reach. The Fifth Circuit’s version of the

adverse-employment-action rule stands out as

especially improper: Only an “ultimate employment

decision”—a refusal to hire, a firing, a demotion, or the

like—constitutes impermissible discrimination. This

standard is inconsistent with Title VII’s text and this

Court’s precedent construing the statute.

II. The Fifth Circuit’s rule excludes many

discriminatory employment practices that are

unlawful (and, thus, actionable) in its sister circuits.

The stories of discrimination victims from these other

jurisdictions demonstrate that the Fifth Circuit’s

approach is wrong. These individuals suffered

discrimination that Title VII prohibits, but the Fifth

Circuit’s standard would enable their employers to

discriminate without consequence.

III. Consistent with Title VII’s text and this

Court’s precedent, an unlawful employment action is

any discrimination against the employee that can

properly be attributed to the employer. As long as the

employer’s intentional, discriminatory conduct

imposes meaningful harm on the employee, it is

prohibited by, and may be remedied under, Title VII.

ARGUMENT

Title VII prohibits disparate treatment by

employers on the basis of race, color, religion, sex, or

national origin. As reflected in the decision below, the

3

Fifth Circuit’s longstanding view is that Title VII

disparate-treatment claims are actionable only when

the employer’s “adverse employment action” is an

“ultimate employment decision,” such as a refusal to

hire or a firing. Pet. App. 4a.

But the statute prohibits a far wider range of

employer practices affecting terms, conditions, or

privileges of employment. Part I explains why that is

so, based on the statute’s text and this Court’s Title

VII precedents. Part II then shows, through a

discussion of decisions from other jurisdictions, that

the Fifth Circuit’s rule undermines Title VII’s broad

anti-discrimination purposes. Part III explains that

Title VII prohibits any intentional discriminatory

action taken by an employer that results in

meaningful harm to the employee.

I.

Title VII prohibits a broad range

discriminatory employment practices.

of

A. The term “adverse employment action”

started as useful shorthand for Title VII’s

text, but courts later gave the term an

impermissibly restrictive meaning.

Title VII of the Civil Rights Act of 1964 makes it

“an unlawful employment practice 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 that individual’s

“race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). This provision describes a broad

universe of prohibited employer practices commonly

referred to as “disparate treatment.”

4

Early on, lower courts used the term “adverse

employment action” simply as shorthand for the wide

range of employment practices prohibited by the

statute. See, e.g., Jefferies v. Harris Cty. Cmty. Action

Ass’n, 615 F.2d 1025, 1032, 1034 (5th Cir. 1980);

Womack v. Munson, 619 F.2d 1292, 1296, 1297 n.7

(8th Cir. 1980). Leftwich v. U.S. Steel Corp., 470 F.

Supp. 758, 764 (W.D. Pa. 1979).

Over the ensuing decades, however, the courts of

appeals have allowed the term “adverse employment

action”—which appears nowhere in the statute’s

text—to take on a life of its own, giving it various

meanings that impermissibly limit Section 2000e2(a)(1)’s broad prohibition on discriminatory

employment practices. See Pet. 10-19 (describing

conflicting approaches taken in the circuits). Most

have added to the statutory language and held that

Title VII’s prohibition on disparate treatment protects

only employees who have suffered some sort of

economic harm. See Autumn George, Comment,

“Adverse Employment Action” How Much Harm Must

be Shown to Sustain a Claim of Discrimination Under

Title VII?, 60 Mercer L. Rev. 1075, 1083-96 (2009)

(surveying circuit-court decisions).

The Fifth Circuit has gone even further in

restricting Title VII’s scope. It recognizes as prohibited

only what it terms “ultimate employment decisions”:

“hiring, firing, demoting, promoting, granting leave,

and compensating.” Thompson v. City of Waco, 764

F.3d 500, 503-04 (5th Cir. 2014) (citing McCoy v. City

of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007)). As

we next show, that court’s strict limit on actionable

employment practices is inconsistent with Title VII’s

text and this Court’s precedent.

5

B. Title VII’s text and this Court’s precedent

demonstrate that the Act prohibits a broad

range

of

discriminatory

employment

practices.

1. To understand the scope of Title VII’s

prohibition on discrimination, we start, as we must,

with the statute’s text. Artis v. D.C., 138 S. Ct. 594,

603 (2018). Nowhere does Title VII use the word

“ultimate” to describe prohibited employment

practices. Nor does the statute otherwise narrow the

broad terms that Congress used to designate the

conduct that it proscribes and the harms it seeks to

redress. By construing the statute so narrowly, the

Fifth Circuit has effectively “rewrit[ten] the statute

that Congress has enacted.” See Nat’l Ass’n of Mfrs. v.

Dep’t of Def., 138 S. Ct. 617, 629 (2018).

a. As noted above, Title VII’s prohibition on

disparate treatment makes it unlawful to

“discriminate against” any individual in the “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). By these words, the

statute limits the prohibited conduct to discrimination

based on certain expressly enumerated characteristics

of the individual (for instance, race and sex), but its

reach is not limited to any particular type of

discriminatory employer conduct.

The operative verb is “discriminate.” To

discriminate is simply “[t]o make or recognize a

distinction; to distinguish among or between;” or “[t]o

treat a person or group in an unjust or prejudicial

6

manner.” Discriminate, Oxford English Dictionary.2

The statute thus encompasses “failure[s] to treat all

persons equally when no reasonable distinction can be

found between those favored and those not favored.”

Discrimination, Black’s Law Dictionary (10th ed.

2014).

Consistent with the breadth of the statutory term

“discriminate,” the statute’s drafters did not seek to

limit it to certain “ultimate” employer actions. Quite

the contrary. Senators Case and Clark, the managers

of the Senate bill that became Title VII, explained that

the statute “is clear and simple and has no hidden

meanings. To discriminate is to make a distinction, to

make a difference in treatment or [to] favor … .” Title

VII, U.S. Equal Emp’t Opportunity Comm’n,

Legislative History of Titles VII and IX of Civil Rights

Act of 1964, at 3040 (1968) (CRA Hist.). Congress

viewed “discrimination in employment” as insidious

and thus designed the statute to secure “the

opportunity for employment without discrimination,”

and to “protect the right of persons to be free from such

discrimination.” H.R. Rep. No. 88-914, at 26 (1963)

(emphases added). If Title VII prohibited only

ultimate employment decisions, it could not fulfill

these purposes.

In sum, Title VII prohibits any differential

treatment by an employer against an employee

concerning what the statute calls “terms, conditions,

or privileges of employment.” We now turn to that

phrase.

2

http://www.oed.com/view/Entry/54058?rskey=MoSQ9H&

result=2&isAdvanced=false#eid

7

b. The statute’s ban on discrimination in “terms,

conditions, or privileges of employment” further

demonstrates that Section 2000e-2(a)(1) captures a

wide range of discriminatory employment practices,

not just those that result in “ultimate” employment

harms.

Start with “terms.” In light of the “specific

context” in which the word is used, Merit Mgmt. Grp.,

LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018),

“terms” means “[p]rovisions that define an

[employment] agreement’s scope [or its] conditions or

stipulations.” Term, Black’s Law Dictionary (10th ed.

2014). In other words, “terms” are employment

“[c]ondition[s] under which something may be done,

settled, agreed, or granted.” Terms, Oxford English

Dictionary.3

Next, “conditions” means “[t]he circumstances or

factors affecting the way in which people live or work,

especially with regard to their well-being,” Condition,

Oxford Living Dictionary,4 or “[t]he whole affecting

circumstances under which a being exists,” Condition,

Oxford English Dictionary.5

And “privileges” means “right[s], advantage[s], or

immunit[ies] granted to or enjoyed by an

individual, … beyond the usual rights or advantages

of others; … exemption[s] from a normal duty,

3

http://www.oed.com/view/Entry/199409?rskey=thMbUI&

result=1&isAdvanced=false#eid

4

5

https://en.oxforddictionaries.com/definition/condition

http://www.oed.com/view/Entry/38550?rskey=0dQTWu&

result=1&isAdvanced=false#eid

8

liability, etc.; [or] enjoyment of some benefit … above

the average or that deemed usual or necessary for a

particular group.” Privilege, Oxford English

Dictionary.6

Taken together, then, “terms, conditions, or

privileges of employment” include, at a minimum, any

characteristic of the employer-employee relationship

attributable to an employer’s conduct. Put another

way, the statutory phrase “terms, conditions, or

privileges” serves as a catchall for all of the daily

incidents of an employment relationship. After all,

“[w]hat more could be asked for in the way of

[statutory] guidelines, short of a complete itemization

of every [employment] practice which could

conceivably be a violation?” See CRA Hist. at 3096

(statement of Sen. Muskie). The Fifth Circuit’s

ultimate-employment-decision standard cannot be

squared with the statute’s expansive, unrestricted

language.

2. This Court’s precedent also shows that the

scope of the statutory prohibition—Title VII’s ban on

discrimination in the terms, conditions, or privileges

of employment—is not limited to ultimate

employment decisions.

a. This Court’s early Title VII decisions

understood that the section of the statute at issue

here, 42 U.S.C. § 2000e-2(a)(1), “generally prohibits

racial discrimination in any employment decision.”

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796

(1973) (emphasis added). The statute’s primary

6

http://www.oed.com/view/Entry/151624?rskey=WnLHFw

&result=1&isAdvanced=false#eid

9

purpose, this Court said, was to ensure “equality of

employment opportunities and to eliminate those

discriminatory

practices

and

devices

which

have … disadvantage[d] minority citizens.” Id. at 800

(emphasis added). Thus, “in enacting Title VII of the

Civil Rights Act of 1964, Congress intended 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 Trans. Co., 424 U.S. 747, 763

(1976) (emphasis added). The statute was not limited

to narrow categories of discrimination, this Court

observed, but rather was designed “to strike at the

entire spectrum of disparate treatment” in

employment. Los Angeles Dep’t of Water & Power v.

Manhart, 435 U.S. 702, 707 n.13 (1978) (emphasis

added) (citation omitted). That is, “[t]he emphasis of

both the language and the legislative history of the

statute is on eliminating discrimination in

employment.” Trans World Airlines, Inc. v. Hardison,

432 U.S. 63, 71 (1977) (emphasis added); see also

McDonnell Douglas, 411 U.S. at 796 (“[I]t is

abundantly clear that Title VII tolerates no racial

discrimination.”).

b. This Court’s later sex-discrimination decisions

are to the same effect. Hishon v. King & Spalding, 467

U.S. 69 (1984), explained that “terms, conditions,

[and] privileges” of employment include any benefit

that is “part and parcel of the employment

relationship,” is an “incident[] of employment,” or

“form[s] an aspect of the relationship between the

employer and employees,” and may “not be doled out

in a discriminatory fashion, even if the employer

would be free … simply not to provide the benefit at

10

all.” Id. at 74-75 (citations omitted); see also Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 78

(1998) (confirming that the phrase “terms, conditions,

or privileges” is not limited in “the narrow contractual

sense”); Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 64 (1986) (“the language of Title VII is not limited

to ‘economic’ or ‘tangible’ discrimination”). These

broad constructions of Title VII demonstrate that the

Act’s disparate-treatment prohibition cannot be

limited to ultimate employment decisions.

c. This Court also has recognized that severe or

pervasive sexual harassment, without more, affects

the terms and conditions of employment. See Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Meritor, 477

U.S. at 73. So too with an employer’s failure to provide

religious

accommodations.

See

E.E.O.C.

v.

Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028,

2033-34 (2015). An employer’s refusal to allow a

Muslim woman to wear a headscarf, for example, is,

without more, discrimination under Title VII even

when it is unaccompanied by an ultimate employment

action such as a refusal to hire or a firing. See id. The

reasoning of these decisions also shows that Title VII

proscribes far more than ultimate employment

decisions.

II.

The Fifth Circuit’s impermissibly narrow

ultimate-employment-decision

standard

authorizes discrimination that other circuits

rightly find actionable.

As the petition demonstrates, the circuits are

intractably fractured on what kind of employer actions

constitute impermissible discrimination under Title

VII. Pet. 10-17. Some require an ultimate employment

decision, see id. at 10-11, some do not, see id. at 12-14,

11

and some ping-pong between the two rules, see id. at

16-17. Whatever the exact configuration of the

(undeniable) circuit split—which includes varying

formulations even among the circuits which reject the

Fifth Circuit’s approach, see id. at 12-16—one thing is

clear: Many courts of appeals condemn as

discriminatory under Title VII conduct that the Fifth

Circuit views as permissible.

The stories that follow are collected from

published decisions outside the Fifth Circuit. In each,

the court accepted the facts presented as true and then

determined, correctly in amici’s view, that the plaintiff

had suffered a form of discrimination prohibited by

Title VII even though she did not experience what the

Fifth Circuit views as an ultimate employment

decision.

A. Office settings and working conditions

The Fifth Circuit’s standard allows employers to

discriminate among their employees regarding

working conditions—even when they put employees at

risk of serious harm or render them unable to do their

jobs effectively. By contrast, in other circuits, this type

of discrimination is prohibited by Title VII.

• Firefighters Anne Wedow and Kathleen Kline

were issued “bunker gear,” safety equipment that had

to “fit properly to ensure that the body is protected

from injury due to smoke, water, heat, gasoline, and

chemicals and to ensure the mobility needed while

fighting a fire.” Wedow v. City of Kansas City, 442

F.3d 661, 666-67 (8th Cir. 2006). But the Fire

Department issued them ill-fitting gear designed for

men. Id. The fire stations had “restrooms [that] were

located in the male locker rooms with the male shower

12

room, doors were not secure, males had the keys, and

where female restrooms existed, they were unsanitary

and often used as storage rooms.” Id. at 667-68. The

Eighth Circuit upheld a jury verdict because “[t]he

record amply demonstrates that the terms and

conditions of a female firefighter’s employment are

affected by a lack of adequate protective clothing and

private, sanitary shower and restroom facilities,

because these conditions jeopardize her ability to

perform the core functions of her job in a safe and

efficient manner.” Id. at 671-72.

• Efrain Reynaga and his son were the only

millwrights of Mexican descent at Roseburg Forest

Products. Reynaga v. Roseburg Forest Prods., 847

F.3d 678, 683 (9th Cir. 2017). The two shared a locker

for their personal belongings, which they secured with

a lock. Id. at 684. One day, the police brought in dogs

to search for drugs. Id. Though Efrain offered to open

his locker, the mill owner broke the lock. Nothing was

found inside. Id. at 684. But when the dogs barked at

a white co-worker’s locker, the owner never opened it.

Id. at 693. The Ninth Circuit recognized this disparate

treatment as unlawful. Id. at 695.

*

*

*

The Fifth Circuit’s ultimate-employment-decision

standard would not recognize Ms. Wedow’s, Ms.

Kline’s, and Mr. Reynaga’s claims as actionable under

Title VII because their employers did not terminate,

refuse to compensate, or demote them. See McCoy v.

City of Shreveport, 492 F.3d 551, 559-60 (5th Cir.

2007).

13

B. Transfers and changes in duties or shifts

The Fifth Circuit recognizes transfers or shift

changes as ultimate employment decisions only when

they would have the “effect of a demotion or denial of

promotion” and the employee is placed in an

“objectively worse” position. Alvarado v. Texas

Rangers, 492 F.3d 605, 613-614 (5th Cir. 2007). But

other circuits have recognized that discriminatory

transfers and shift changes can significantly affect an

employee’s terms, conditions, and privileges of

employment even when they are not ultimate

employment decisions.

• Dr. Carmen Rodriguez, a female junior-high art

teacher, was transferred to teach elementary school

students because the school district “wouldn’t have a

male grade school art teacher,” id. at 364, causing her

“severe professional … trauma.” Rodriguez v. Bd. of

Educ. of Eastchester Union Free Sch. Dist., 620 F.2d

362, 366 (2d Cir. 1980). The school district explained

at the time that her transfer “does not and will not

diminish her salary; does not and will not reduce her

benefits, her seniority rights, or add any increased

load to her work performance.” Id. at 365. But the

“radical change” in the nature of her work still

“constitute[d] interference with a condition or

privilege of employment adversely affecting her

status” and was thus impermissible under Title VII.

Id. at 366.

• Robert Supinger, a white man, and his Korean

wife were the only couple against which the Virginia

Department of Motor Vehicles enforced its antinepotism policy. Supinger v. Virginia, 167 F. Supp. 3d

795, 804 (W.D. Va. 2016). When Mr. Supinger was

transferred as result of the policy, his daily commute

14

time increased six-fold to three hours. Id. at 807. “The

inconvenience and expense caused by such a lengthy

increase in commute time [was] sufficient to cause a

significant detrimental effect on the terms and

conditions of Supinger’s employment.” Id. at 807-08.

*

*

*

Because transfers and shift changes are

actionable in the Fifth Circuit only when they are

objectively equivalent to a demotion, Dr. Rodriguez’s

and Mr. Supinger’s injuries would go unremedied if

litigated there. See Alvarado, 492 F.3d at 613-614.

C. Actions with

employment

consequences

for

future

• Noel Abboud was “the only employee of Arab

ancestry” at the Jamesville Correctional Facility.

Abboud v. Cty. of Onondaga, 341 F. Supp. 3d 164, 168

(N.D.N.Y. 2018). Mr. Abboud maintained that, as a

result of anti-Muslim bias, he was denied firearms

training, which did not limit his ability to earn

overtime, but made him ineligible for certain overtime

shifts. Id. at 173. He was also disciplined more harshly

than other employees for similar minor breaches of

protocol. Id. at 174. These discriminatory decisions

constituted unlawful employment actions under Title

VII. Id. at 179.

• Officers Bernadette Baltzer, Tricia Markham,

and Julie Rortvedt—Sun City’s only full-time female

police officers—saw special assignments given

exclusively to male officers. Baltzer v. City of Sun

Prairie Police Dep’t, 725 F. Supp. 1008, 1011-14 (W.D.

Wis. 1989). Though the court granted summary

judgment to the City on these claims because the

officers did not properly allege that they would have

15

taken the special assignments given the chance, the

court never questioned that Sun City’s treatment of

the officers would be employment discrimination (and

thus actionable) if properly supported in the record. Id.

at 1026-28.

• Dr. Deepa Soni’s employer interfered with her

future job prospects. Soni v. Wespiser, 239 F. Supp. 3d

373, 378-81 (D. Mass. 2017). After suing her former

employer for race and gender discrimination, Dr. Soni,

an Indian neurosurgeon, twice sought employment at

other hospitals. Id. Although both initially expressed

interest in hiring her, neither did. Id. Her former

employer gave unsolicited, unfavorable references to

the other hospitals, suggesting that she would file

meritless discrimination charges. Id. Dr. Soni

maintained that her former employer’s discrimination

tarnished her reputation and deprived her of the two

jobs. See id. at 380-81. The court held that job

references are a privilege of employment that may not

be given on a discriminatory basis. Id. at 383.

*

*

*

Employees’ career prospects almost always

depend on establishing a good track record in their

current positions. But within the Fifth Circuit,

employers may discriminate in job responsibilities,

Thompson v. City of Waco, 764 F.3d 500, 504 (5th Cir.

2014), performance awards, and disciplinary writeups, see Puleo v. Texana MHMR Ctr., 187 F. Supp. 3d

769, 781-82 (S.D. Tex. 2016). See also Lopez v.

Kempthorne, 684 F. Supp. 2d 827, 885 (S.D. Tex. 2010)

(same as to performance awards). In the Fifth Circuit,

the Sun City police officers, Mr. Abboud, and Dr. Soni

could not have pursued their Title VII disparate-

16

treatment claims because their employers did not

discriminate against them in an ultimate employment

decision. For Dr. Soni in particular, her former

employer’s discriminatory job references would fall

short of the Fifth Circuit’s inflexible ultimateemployment-decision standard because the employer

who discriminated was not the employer who refused

to hire her.

D. Employment prerequisites

Shortly after Dr. Sagun Tuli, a female spinal

neurosurgeon, joined the hospital staff, a male

colleague, Dr. Day, began belittling female doctors.

Tuli v. Brigham & Women’s Hosp., Inc., 566 F. Supp.

2d 32, 38-39 (D. Mass. 2008), aff’d, 656 F.3d 33 (1st

Cir. 2011). He questioned Dr. Tuli’s skills and

judgment. Id. This mistreatment continued until Dr.

Tuli needed to be re-credentialed to continue working

at the hospital. Id. at 36, 43. Dr. Day was selected to

present Dr. Tuli’s case to the Credentials Committee.

Id. at 44. He said that Dr. Tuli should not be recredentialed because her “mood swings” made her

intolerable to work with. Id. at 45. Based on Dr. Day’s

presentation, the committee voted to re-credential Dr.

Tuli but only if she received a psychiatric evaluation.

Id. Requiring Dr. Tuli to receive an evaluation as a

condition of being re-credentialed was sufficiently

adverse to support her disparate-treatment claim. Id.

at 36-38, 59.

Dr. Tuli was denied a prerequisite to her

continued employment granted to other employees

without incident. In the Fifth Circuit, her employer

would have been able to delay, condition, or deny this

prerequisite on a discriminatory basis because those

17

actions do not constitute ultimate employment

decisions. See McCoy, 492 F.3d at 559-60.

E. Leaving the workplace

After returning to work from her honeymoon

visibly pregnant, Alana Shultz’s boss told her she

would be fired. Shultz v. Congregation Shearith Israel

of City of New York, 867 F.3d 298, 302 (2d Cir. 2017).

She was offered a six-week severance package in

exchange for “a complete waiver of her right to

commence an action for pregnancy or gender

discrimination.” Id. Ms. Shultz refused. Id. Three

weeks later, her employer reversed course, and she

kept her job. Id. at 301-02. But she had already

“experience[d] the dislocation of losing her

employment at a particularly vulnerable time.” Id. at

307. The court reasoned that Ms. Shultz’s employer

took an adverse employment action against her. Id. at

305. Because Ms. Schultz’s employer didn’t actually

fire her, whether its actions would be considered an

ultimate employment decision by the Fifth Circuit is

uncertain at best.

F. Disproportionately heavy workload

• Carlos Vega, a Hispanic high school math

teacher, was regularly assigned classes with more

Spanish-speaking students than were other teachers.

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,

88 (2d Cir. 2015). It was “twice as much work” to

prepare for class. Id. at 76-77. The court found that

this discriminatory assignment was “more disruptive

than a mere inconvenience or an alteration of job

responsibilities,” affecting the terms and conditions of

his work. Id. at 87.

18

• Stephen Pothen, a maintenance engineer of

Indian descent, was also expected to do more work

than his colleagues. Pothen v. Stony Brook Univ., 211

F. Supp. 3d 486, 489-90 (E.D.N.Y. 2016). “[U]nlike

other engineers, he was at times not provided with a

utility assistant, requiring him to do the work of [an]

engineer … and assistant at the same time.” Id. at 49495. The court viewed this disparate treatment as

actionable because Mr. Pothen was given a

disproportionately heavy workload compared to his

similarly situated colleagues. Id.

• Christie Davis was the only female electrician

at her workplace. Davis v. Team Elec. Co.,

520 F.3d 1080, 1085 (9th Cir. 2008). Unlike her male

co-workers, she was often forced to work alone and

assigned the most hazardous work. Her supervisor

told her to do piping and ceiling work for weeks on end,

causing extreme neck pain. She was given a

“disproportionate number of jobs that entailed

working with Monokote, a hazardous material.” Id.

Though Ms. Davis’s onerous tasks were in her job

description, she suffered actionable discrimination

because “in the aggregate she was given a

disproportionate amount of dangerous and strenuous

work.” Id. at 1090.

*

*

*

The outcome below, in petitioner Peterson’s case,

demonstrates that the Fifth Circuit would hold that

the disparate treatment endured by Mr. Vega, Mr.

Pothen, and Ms. Davis is not prohibited by Title VII.

Mr. Peterson and other black employees maintain

that, on account of their race, they were required by

their employer to work outside in the heat, while white

19

employees worked inside in air-conditioned comfort.

But according to the Fifth Circuit, “[t]aking this as

true,” they did not suffer discrimination under Title

VII. Pet. App. 4a.

III.

Title VII’s disparate-treatment prohibition

outlaws any discriminatory conduct or

practice attributable to the employer that

causes the employee meaningful harm.

As just shown, many courts view as

discriminatory under Title VII various employer

practices that would not be ultimate employment

decisions (and thus not actionable) in the Fifth Circuit.

But even circuits that have taken a broader view than

the Fifth have nonetheless restricted the statutory

prohibition against discrimination in a manner at

odds with Title VII’s text and purposes.

As discussed above (at 5), to discriminate means

simply “to distinguish between or among” people or

groups. See Discriminate, Oxford English Dictionary.7

And the phrase “terms, conditions, and privileges of

employment” includes myriad characteristics of the

employer-employee relationship. See supra at 7-8.

This Court should thus hold that Title VII means what

it says: Employers may not discriminate against their

employees with respect to any “terms, conditions, and

privileges” of employment on the basis of race, color,

religion, sex, or national origin, period.

Title VII prohibits “discriminat[ing] against any

individual” on the basis of certain characteristics. 42

U.S.C. § 2000e-2(a)(1) (emphasis added). So a Title VII

7

http://www.oed.com/view/Entry/54058?rskey=MoSQ9H&

result=2&isAdvanced=false#eid

20

plaintiff must show that the employer’s discrimination

harmed her. But the statute does not demand a

minimum

level

of

actionable

harm.

Any

discriminatory employer conduct that results in

meaningful harm to an employee—that is, harm that

a reasonable employee would view as negatively

affecting any of the circumstances of her

employment—is all that the statute requires. Cf. Wis.

Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S.

214, 231 (1992) (noting the traditional requirement,

inferable from any enactment, that de minimis

applications of a statute generally are excluded from

coverage).

This requirement of meaningful harm should not

be confused with a far greater requirement that the

employee show immediate economic harm, much less

the kinds of “ultimate” workplace harms that the Fifth

Circuit demands. As shown above (at 5-10), Title VII’s

text and history, and an unbroken line of this Court’s

precedent, contemplate no such restrictions. And as

the lower-court precedent reviewed in Part II

illustrate (at 11-19), many discriminatory employer

actions that have no immediate pocketbook impact

nonetheless impose serious harms on employees,

worsening their present-day workplace circumstances

and their future employment prospects.

Rejecting the lower courts’ atextual adverseemployment-action doctrine would not impose any

unreasonable obligations or litigation burdens on

employers, but, rather, would simply apply Title VII

as it was written and intended. Importantly, liability

for Title VII disparate-treatment discrimination will

still be limited to only those situations where the

plaintiff can prove that the employer intentionally

21

discriminated on the basis of race, color, religion, sex,

or national origin. See Tex. Dep’t Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981). That is a significant

burden. See id. at 257-59; St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 509-12 (1993). And the harm

suffered by the employee must be attributable to the

employer based on principles of agency law and this

Court’s precedent. See, e.g., Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 754 (1998). In sum, the

floodgates will not open, and the statute’s text and

purposes will be honored.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Aderson B. Francois

GEORGETOWN LAW

CIVIL RIGHTS

CLINIC AND VOTING

RIGHTS INSTITUTE

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 661-6721

Brian Wolfman

Counsel of Record

Bradley Girard

GEORGETOWN LAW

APPELLATE COURTS

IMMERSION CLINIC

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 661-6582

wolfmanb@georgetown.edu

Counsel for Amici Curiae

June 2019