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

No. 18-1401

In the Supreme Court of the United States

DAVID D. PETERSON, PETITIONER

v.

LINEAR CONTROLS, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

ANNE W. KING

Attorney

Equal Employment

Opportunity Commission

Washington, D.C. 20507

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

ERIC S. DREIBAND

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

ELLIOTT M. DAVIS

Acting Principal Deputy

Assistant Attorney General

ALEXANDER V. MAUGERI

Deputy Assistant Attorney

General

CHRISTOPHER G. MICHEL

Assistant to the Solicitor

General

TOVAH R. CALDERON

ANNA M. BALDWIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq., makes it unlawful for a private employer

or a state or local government “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).

The question presented is whether that prohibition

includes discriminatory working conditions, or is instead limited to discrimination in “ultimate employment

decisions,” such as hiring, granting leave to, discharging, promoting, or compensating individuals.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement:

A. Statutory background ....................................................... 2

B. Proceedings below............................................................. 3

Discussion ...................................................................................... 6

A. The decision below is incorrect ........................................ 7

B. The decision below conflicts with the decisions of

other courts of appeals.................................................... 18

C. The question presented warrants review in

this case ............................................................................ 20

Conclusion ................................................................................... 24

TABLE OF AUTHORITIES

Cases:

Begay v. United States, 553 U.S. 137 (2008) ....................... 12

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

(1998) .............................................................................. 16, 17

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

548 U.S. 53 (2006) ......................................2, 7, 10, 17, 18, 20

Chuang v. University of California Davis,

225 F.3d 1115 (9th Cir. 2000) ............................................. 18

Clark v. Martinez, 543 U.S. 371 (2005) ............................... 13

Davis v. Team Elec. Co., 520 F.3d 1080

(9th Cir. 2008) ...................................................................... 19

Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) ........... 11, 12, 20

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015).................................................. 10, 12, 14

Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) ........... 19

Forgus v. Mattis, 753 Fed. Appx. 150

(4th Cir. 2018), petition for cert. pending,

No. 18-942 (filed Jan. 15, 2019) .................................... 15, 16

(III)

IV

Cases—Continued:

Page

Green v. Administrators of the Tulane Educ. Fund,

284 F.3d 642 (5th Cir. 2002) ................................................. 5

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ......... 8, 9, 10

Lewis v. City of Chicago, 560 U.S. 205 (2010) .................... 7

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

(5th Cir. 2007) ........................................... 5, 11, 12, 13, 18, 22

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

(1973) .................................................................................. 2, 9

Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57 (1986) ................................................... 7, 8, 9, 13

Michael v. Caterpillar Fin. Servs. Corp.,

496 F.3d 584 (6th Cir. 2007), cert. denied,

552 U.S. 1258 (2008)............................................................ 18

Mont v. United States, 139 S. Ct. 1826 (2019) .................... 22

Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22

(2018) ...................................................................................... 7

National R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002).............................................................. 20

Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ............................ 22

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) ........................................................... 8, 10

Outley v. Luke & Assocs., Inc., 840 F.3d 212

(5th Cir. 2016) ...................................................................... 19

Ortiz-Diaz v. United States Dep’t of Hous. &

Urban Dev., 867 F.3d 70 (D.C. Cir. 2017) .............. 6, 15, 19

Page v. Bolger, 645 F.2d 227 (4th Cir.), cert. denied,

454 U.S. 892 (1981).............................................................. 12

Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) .............. 18

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560

(2012) ...................................................................................... 7

Tart v. Illinois Power Co., 366 F.3d 461

(7th Cir. 2004) ...................................................................... 19

V

Cases—Continued:

Page

United States v. Williams, 504 U.S. 36 (1992) ................... 22

University of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013).................................................... 7, 14, 21

Vance v. Ball State Univ., 570 U.S. 421 (2013) ................... 13

Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818

(5th Cir. 2019) ...................................................... 6, 14, 16, 19

Wheat v. Florida Parish Juvenile Justice Comm’n,

811 F.3d 702 (5th Cir. 2016) ............................................... 16

Statutes:

Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq. ............................................................ 21

29 U.S.C. 623(a)(1)........................................................... 21

Americans With Disabilities Act of 1990,

42 U.S.C. 12101 et seq. ........................................................ 21

42 U.S.C. 12112(a) ........................................................... 21

Civil Rights Act of 1964, Tit. VII,

42 U.S.C. 2000e et seq. ............................................... passim

42 U.S.C. 2000e(a)-(b) ....................................................... 2

42 U.S.C. 2000e-2(a)(1) ( § 703(a)(1))..................... passim

42 U.S.C. 2000e-2(a)(2) ( § 703(a)(2)) ............... 2, 3, 14, 15

42 U.S.C. 2000e-2(m) ....................................................... 10

42 U.S.C. 2000e-3(a) (§ 704(a)) ............................. 3, 17, 18

42 U.S.C. 2000e-5(f )(1)...................................................... 1

42 U.S.C. 2000e-16............................................................. 1

42 U.S.C. 2000e-16(a) (§ 717(a)) ........................... 3, 12, 15

18 U.S.C. 1514A(a) ................................................................. 21

21 U.S.C. 399d(a) ................................................................... 21

49 U.S.C. 42121(a) ................................................................. 21

VI

Miscellaneous:

Page

Equal Employment Opportunity Comm’n:

Compliance Manual (2006) ............................................. 8

Statutes by Issue (Charges filed with EEOC),

FY 2010-FY 2019, https://go.usa.gov/xdBBu

(last visited Mar. 20, 2020) ........................................ 20

Title VII of the Civil Rights Act of 1964

Charges (Charges filed with EEOC),

FY 1997–FY 2019, https://go.usa.gov/xdBK3

(last visited Mar. 20, 2020) ........................................ 21

Exec. Order No. 11,246, 30 Fed. Reg. 12,319

(Sept. 28, 1965) .................................................................... 21

Office of Fed. Contract Compliance Programs,

U.S. Dep’t of Labor, Federal Contract Compliance

Manual, https://go.usa.gov/xdB8t (last visited

Mar. 20, 2020) ...................................................................... 21

Random House Dictionary of the English Language

(1966) ...................................................................................... 8

Webster’s New International Dictionary of the

English Language (2d ed. 1958) ......................................... 8

In the Supreme Court of the United States

No. 18-1401

DAVID D. PETERSON, PETITIONER

v.

LINEAR CONTROLS, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be granted.

INTEREST OF THE UNITED STATES

This case concerns the scope of the employmentdiscrimination protections in Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seq. The Equal Employment Opportunity Commission (EEOC) enforces Title

VII’s anti-discrimination provisions against private employers. The Department of Justice enforces those provisions against state- and local-government employers.

42 U.S.C. 2000e-5(f )(1). Title VII also includes antidiscrimination provisions applicable to the federal government as an employer. 42 U.S.C. 2000e-16. The

United States accordingly has a substantial interest in

this Court’s resolution of the question presented.

(1)

2

STATEMENT

Petitioner, who worked for respondent on an offshore oil platform, alleges that he and other “black employees had to work outside and were not permitted water breaks, while the white employees worked inside

with air conditioning and were given water breaks.”

Pet. App. 2a. Petitioner sued respondent for racial discrimination “with respect to his compensation, terms,

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

2000e-2(a)(1). The district court granted summary

judgment to respondent. Pet. App. 11a-47a. The court

of appeals affirmed. Id. at 1a-10a.

A. Statutory Background

Congress enacted Title VII of the Civil Rights Act of

1964 to “assure equality of employment opportunities

and to eliminate * * * discriminatory practices and

devices” in the workplace. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 800 (1973). This case involves

“Title VII’s core antidiscrimination provision,” Section

703(a)(1). Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 61 (2006). Section 703(a)(1) makes it unlawful for a private employer or a state or local government

“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); see 42 U.S.C. 2000e(a)-(b).

Title VII includes several other relevant provisions.

Section 703(a)(2) makes it unlawful for a private employer or a state or local government “to limit, segregate, or classify * * * employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or

3

otherwise adversely affect his status as an employee,

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

national origin.” 42 U.S.C. 2000e-2(a)(2). Section 704(a)

prohibits retaliation by a private employer or a state or

local government against employees or applicants for

engaging in conduct protected by Title VII. 42 U.S.C.

2000e-3(a). And Section 717(a) provides that federalsector “personnel actions * * * shall be made free from

any discrimination based on race, color, religion, sex, or

national origin.” 42 U.S.C. 2000e-16(a).

B. Proceedings Below

1. Petitioner is an electrician formerly employed by

respondent to perform construction and maintenance

on offshore oil platforms. Pet. App. 2a, 11a. This case

involves petitioner’s work on a platform in the Gulf of

Mexico during an 11-day period in July 2015. Id. at 23a.

Petitioner alleges that, during that period, he and other

“black crew members were required by [respondents’]

white supervisors to work every day outside, in the

heat[,] while white crew members worked exclusively

inside, in air-conditioned facilities.” Ibid. (citation omitted). Petitioner further alleges, “if any black crew member * * * took a water break inside, the white supervisors would curse and yell and order him back to work.”

Ibid. (citation omitted). According to petitioner, black

employees on the platform asked their supervisors to

order a “rotation from outside to inside among white

and black crew members,” but “no [such] rotation” occurred. Ibid. (citation omitted).

2. After resigning his position, petitioner filed an

EEOC charge alleging, inter alia, racial discrimination

4

in violation of Title VII. Pet. App. 18a. The EEOC issued a Notice of Right to Sue “at [petitioner’s] request.”

D. Ct. Doc. 29-3, at 107 (Feb. 22, 2016). 1

Petitioner filed suit in federal court. Pet. App. 12a.

As relevant here, he claimed that respondent had violated Section 703(a)(1) during his offshore assignment

in July 2015. Id. at 31a. Specifically, he alleged that

requiring black employees to “work every day outside

while the [white] crew members worked exclusively inside in air-conditioned facilities,” id. at 34a, constituted

discrimination “with respect to his compensation, terms,

conditions, or privileges of employment, because of

* * * race,” 42 U.S.C. 2000e-2(a)(1). He testified in a

deposition and submitted declarations from two witnesses corroborating his account. Pet. App. 34a-36a.

Respondent produced testimony to the contrary. See

id. at 34a-35a.

The district court granted respondent’s motion for

summary judgment. Pet. App. 11a. The court first held

that petitioner had “identified no similarly situated

[white] employee who * * * was allowed to work exclusively indoors.” Id. at 35a. The court stated that petitioner’s deposition contained only “general claims that

[white] workers were treated better than him.” Ibid.

And the court excluded the declarations supporting petitioner because the court found they lacked an adequate foundation or personal knowledge. Id. at 36a-38a.

The district court further held that “[e]ven if [petitioner] had identified a similarly situated [white] comparator,” his claims would “still fail as a matter of law

because he has not alleged or testified to any adverse

The district court’s statement that “the EEOC ruled in [respondent’s] favor and found that the evidence did not establish a violation of Title VII” is accordingly incorrect. Pet. App. 12a.

1

5

employment action.” Pet. App. 38a-39a. The court explained that, under Fifth Circuit precedent, Section

703(a)(1)’s prohibition on discrimination “with respect

to [an employee’s] compensation, terms, conditions, or

privileges of employment,” 42 U.S.C. 2000e-2(a)(1), “ ‘include[s] only ultimate employment decisions such as

hiring, granting leave, discharging, promoting, or compensating,’ ” Pet. App. 39a (quoting Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642, 657

(5th Cir. 2002)). Under that interpretation, “[a]ctions

such as assigning an employee more difficult work” and

“giving employees unequal break times * * * are not

‘adverse actions’ within the meaning of Title VII.” Id.

at 40a (citation omitted).

3. The court of appeals affirmed. Pet. App. 1a-10a.

The court did not review the district court’s evidentiary

ruling or its conclusion that petitioner had not identified

a white comparator. Id. at 4a. The court of appeals instead held that petitioner “cannot satisfy Title VII’s adverse employment action requirement,” even “[a]ssuming the declarations identify similarly situated comparators.” Ibid. The court explained that it “strictly construes adverse employment actions to include only ‘ultimate employment decisions,’ such as ‘hiring, granting

leave, discharging, promoting, or compensating.’ ” Ibid.

(quoting McCoy v. City of Shreveport, 492 F.3d 551, 559

(5th Cir. 2007) (per curiam)). Applying that interpretation, the court held that, even if petitioner’s allegation

“that he and his black team members had to work outside without access to water, while his white team members worked inside with air conditioning,” is “[t]ak[en]

* * * as true,” the district court “did not err in holding

6

that these working conditions are not adverse employment actions because they do not concern ultimate employment decisions.” Ibid.

DISCUSSION

The court of appeals erred in holding that racial discrimination in “working conditions,” Pet. App. 4a, is not

discrimination “with respect to * * * terms, conditions,

or privileges of employment,” 42 U.S.C. 2000e-2(a)(1).

The court’s reasoning that Section 703(a)(1) prohibits

discrimination only in “ultimate employment decisions,”

Pet. App. 4a, has no foundation in Title VII’s text, Congress’s purpose, or this Court’s precedents. And the

startling result in this case—that an employer may racially segregate its workforce by requiring black employees to work outside in the summer heat while white

employees work indoors with air conditioning—underscores the defects in the court of appeals’ position.

Other courts of appeals have expressly rejected the

reading of Title VII adopted by the Fifth Circuit below.

And while some other Fifth Circuit decisions suggest a

different interpretation limiting Section 703(a)(1) to certain “significant and material” employment actions,

Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824

(2019) (citation omitted), that reading is equally atextual and mistaken. See Ortiz-Diaz v. United States

Dep’t of Hous. & Urban Dev., 867 F.3d 70, 81 (D.C. Cir.

2017) (Kavanaugh, J., concurring); Gov’t Br. in Opp. at

13-17, Forgus v. Esper, No. 18-942 (May 6, 2019) (Gov’t

Forgus Br.). The question presented is important, frequently recurring, and suitable for resolution in this

case. The petition for a writ of certiorari therefore

should be granted.

7

A. The Decision Below Is Incorrect

1. The court of appeals held that Section 703(a)(1)

prohibits discrimination only in “ultimate employment

decisions.” Pet. App. 4a. That reading contradicts Title

VII’s text, structure, and purpose.

a. In interpreting Title VII, this Court looks to “the

language of ” the statute. Meritor Savings Bank, FSB

v. Vinson, 477 U.S. 57, 64 (1986); see, e.g., University of

Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352-353

(2013); Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 62-64 (2006). That approach reflects this

Court’s “charge * * * to give effect to the law Congress

enacted.” Lewis v. City of Chicago, 560 U.S. 205, 215,

217 (2010); cf. Mount Lemmon Fire Dist. v. Guido,

139 S. Ct. 22, 24-27 (2018).

The key text in this case, Section 703(a)(1), makes it

unlawful for a private employer or a state or local government “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). Petitioner does not allege that

respondent made a “hir[ing]” or “discharge” decision

based on his race, nor that race played a role in his

“compensation.” Ibid. This case accordingly turns on

whether respondent “discriminate[d] against” petitioner “with respect to his * * * terms, conditions, or

privileges of employment.” Ibid.

“When a term goes undefined in a statute,” as the

key language here does, this Court gives “the term its

ordinary meaning.” Taniguchi v. Kan Pac. Saipan,

Ltd., 566 U.S. 560, 566 (2012). The ordinary meaning of

8

the phrase “terms, conditions, or privileges of employment,” 42 U.S.C. 2000e-2(a)(1), plainly includes the

working conditions petitioner challenges here—the location and nature of his job assignment, the rotation of

employees between worksites, and the availability of

breaks. See Webster’s New International Dictionary

of the English Language 556 (2d ed. 1958) (defining “conditions” to include “[a]ttendant circumstances * * * as

[in], living conditions; playing conditions”); see also,

e.g., Random House Dictionary of the English Language 306 (1966) (defining “conditions” to include “situation with respect to circumstances”). That reading accords with common sense. A typical employee asked to

describe his “terms” or “conditions * * * of employment,” 42 U.S.C. 2000e-2(a)(1), would almost surely

mention where he works and what he does. See EEOC

Compliance Manual § 15-VII(B)(1) (2006) (“Work assignments are part-and-parcel of employees’ everyday

terms and conditions of employment.”).

Respondent contends (Br. in Opp. 11, 15-17) that petitioner’s allegations do not implicate his “terms, conditions, or privileges of employment” because working

outdoors was part of his job description. But this Court

has rejected that line of argument, holding that Section

703(a)(1) “not only covers ‘terms’ and ‘conditions’ in the

narrow contractual sense, but ‘evinces a congressional

intent to strike at the entire spectrum of disparate treatment of men and women in employment.’ ” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)

(quoting Meritor, 477 U.S. at 64); see, e.g., Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The fact that

a job description includes a particular duty thus does

not license an employer to discriminate among employees in their performance of that duty.

9

In interpreting Section 703(a)(1), moreover, this Court

has held that discrimination in the “terms, conditions,

or privileges of employment,” 42 U.S.C. 2000e-2(a)(1),

includes “discrimination based on [a protected trait

that] has created a hostile or abusive work environment,”

Meritor, 477 U.S. at 66. The Court has grounded such

hostile-work-environment claims in Section 703(a)(1)’s

text by explaining that “the phrase ‘terms, conditions or

privileges of employment’ in Title VII is an expansive

concept which sweeps within its protective ambit the

practice of creating a working environment heavily

charged with * * * discrimination.” Ibid. (brackets and

citation omitted). Respondent’s contention that Section

703(a)(1) does not apply to discriminatory working conditions like those at issue here cannot be squared with

this Court’s reading of the statute. See Harris, 510 U.S.

at 25 (Scalia, J., concurring) (explaining that “the term

‘conditions of employment’ ” in Section 703(a)(1) supports a claim that “working conditions have been discriminatorily altered”).

Respondent’s position also conflicts with Title VII’s

objectives. Congress enacted Title VII to “assure equality of employment opportunities and to eliminate * * *

discriminatory practices and devices” in the workplace.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800

(1973). Allowing an employer to make black employees

“work every day outside, in the heat[,] while white crew

members work[] exclusively inside, in air-conditioned

facilities,” Pet. App. 23a (citation omitted), is irreconcilable with that purpose. Indeed, while it may be possible

to posit even more egregious discrimination in working

conditions (e.g., requiring only black employees to handle toxic waste), the facts alleged here present the kind

of extreme scenario that would typically arise only as a

10

hypothetical to illustrate the flaws in respondent’s interpretation of the statute.

Importantly, there are limits on the scope of the

“terms, conditions, or privileges of employment” covered by Section 703(a)(1). 42 U.S.C. 2000e-2(a)(1). But

those limits come from the statutory text, not from

“add[ing] words to the law to produce what is thought

to be a desirable result.” EEOC v. Abercrombie & Fitch

Stores, Inc., 575 U.S. 768, 774 (2015); see Oncale, 523 U.S.

at 80. As this Court has explained in the hostile-workenvironment context, “merely offensive” conduct alone

does not violate Section 703(a)(1), because it does not

“alter[] the conditions of the victim’s employment.”

Harris, 510 U.S. at 21-22. Likewise, Section 703(a)(1)

“protects an individual only from employment-related

discrimination.” White, 548 U.S. at 63 (emphasis added).

An employer who engages in discrimination with no

connection to the workplace therefore does not violate

Section 703(a)(1).

Moreover, identifying an employer action that implicates the “terms, conditions, or privileges of employment”

satisfies only one element of a Section 703(a)(1) claim.

42 U.S.C. 2000e-2(a)(1). To state a Section 703(a)(1) violation, an employee must also establish that the employer “discriminate[d] * * * because of ” a protected

trait. Ibid.; see 42 U.S.C. 2000e-2(m). “The critical issue” in evaluating such a claim “is whether members of

[a protected category] are exposed to disadvantageous

terms or conditions of employment to which [others] are

not exposed.” Oncale, 523 U.S. at 80 (citation omitted);

see, e.g., White, 548 U.S. at 59. Thus, making distinctions between employees based on relevant differences

in a way that does not create disadvantages does not vi-

11

olate Section 703(a)(1). For example, employers generally may maintain equivalent, sex-specific bathrooms or

changing facilities without violating Section 703(a)(1).

Such facilities recognize relevant differences between

male and female employees and thereby treat similarly

situated men and women the same, provided that the

facilities are of comparable quality and convenience.

b. The court of appeals did not attempt to square its

position with Section 703(a)(1)’s text. The court instead

relied on circuit precedent that “strictly construes” Section 703(a)(1) “to include only ‘ultimate employment decisions,’ such as ‘hiring, granting leaving, discharging,

promoting, or compensating.’ ” Pet. App. 4a (quoting

McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.

2007) (per curiam)). Because petitioner’s allegation of

discriminatory “working conditions” did not involve an

“ultimate employment decision[],” the court held that

he could not “satisfy Title VII’s adverse employment action requirement.” Ibid.

The court of appeals adopted its “ultimate employment decisions” limitation a quarter-century ago in Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) (per curiam).

The court there stated, without reference to the statutory text, that “Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some

tangential effect upon those ultimate decisions.” Id. at

781-782. The court then defined “ultimate employment

decisions” based on another court of appeals’ observation “that Title VII discrimination cases have focused

upon ultimate employment decisions such as hiring,

12

granting leave, discharging, promoting, and compensating.” Id. at 782 (citing Page v. Bolger, 645 F.2d 227, 233

(4th Cir.) (en banc), cert. denied, 454 U.S. 892 (1981)).2

The court of appeals’ limitation of Section 703(a)(1)

to “ultimate employment decision[s],” Pet. App. 4a, is

flawed. Most fundamentally, “Title VII contains no

such limitation.” Abercrombie, 575 U.S. at 773 (declining to read an unstated limitation into Title VII). To the

contrary, the text and structure of Section 703(a)(1) refute such a limitation. Section 703(a)(1) first makes it

unlawful “to fail or refuse to hire or to discharge any

individual” because of a protected trait, 42 U.S.C.

2000e-2(a)(1)—a prohibition that does involve “ultimate

employment decisions,” Pet. App. 4a. Section 703(a)(1)

then makes it unlawful “otherwise to discriminate against

any individual with respect to * * * terms, conditions,

or privileges of employment.” 42 U.S.C. 2000e-2(a)(1)

(emphasis added). That part of the statute—particularly

when set apart from hiring and firing by the word “otherwise,” ibid.—cannot be read as limited to “ultimate employment decisions,” Pet. App. 4a; see Begay v. United

States, 553 U.S. 137, 144 (2008) (explaining that “otherwise” means “in a different way or manner”) (citation

omitted).

The court of appeals’ own list of “ultimate employment

decisions” highlights the disconnect with the statutory

text. Pet. App. 4a. The court identified five examples

Dollis arose under Title VII’s federal-sector provision, which

provides that federal “personnel actions * * * shall be made free

from any discrimination based on race, color, religion, sex, or national

origin.” 42 U.S.C. 2000e-16(a). Although that text differs from the

text of Section 703(a)(1), the Fifth Circuit regularly applies the “ultimate employment decisions” limitation adopted in Dollis to Section 703(a)(1) cases. See, e.g., Pet. App. 4a; McCoy, 492 F.3d at 559.

2

13

of such decisions: “hiring, granting leave, discharging,

promoting, or compensating.” Ibid. (quoting McCoy,

492 F.3d at 559). Three of those actions—“hiring,” “discharging,” and “compensating”—are expressly covered

by Section 703(a)(1). Ibid. The court of appeals thus

effectively reads Section 703(a)(1)’s reference to “terms,

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

2000e-2(a)(1), to cover only decisions such as “granting

leave” and “promoting,” Pet. App. 4a (citation omitted).

That is not a plausible account of statutory language

that “strike[s] at the entire spectrum of disparate treatment of men and women in employment.” Meritor,

477 U.S. at 64 (emphasis added; citations and internal

quotation marks omitted). By reading “ultimate employment decisions” into the statute, Pet. App. 4a, the

Fifth Circuit thus reads “terms, conditions, or privileges of employment,” 42 U.S.C. 2000e-2(a)(1), largely

out of the statute.

The court of appeals’ reading also departs from

this Court’s precedents. As noted above, the Court’s

hostile-work-environment decisions have interpreted

Section 703(a)(1) to support a claim that “the work environment [may be] so pervaded by discrimination that

the terms and conditions of employment [a]re altered.”

Vance v. Ball State Univ., 570 U.S. 421, 427 (2013). But

those decisions do not indicate that the “terms and conditions of employment” that can be altered, ibid., are

limited to “ultimate employment decisions,” such as

“discharging” an employee who is the victim of harassment, Pet. App. 4a (citation omitted). Neither the court

of appeals nor respondent has explained how the same

statutory text can mean one thing in a hostile-workenvironment claim but something else in a discrimination claim like this one. Cf. Clark v. Martinez, 543 U.S.

14

371, 386 (2005) (declining to “give the same statutory

text different meanings in different cases”).

Finally, the court of appeals’ interpretation would

produce untenable results. By the court’s logic, even

brazen acts of workplace discrimination do not give rise

to a Title VII claim if they are not manifested in “ultimate employment decisions.” Pet. App. 4a. An employer could, for example, shut off the heat in the offices

of only racial-minority or female employees without liability for discrimination in the “terms, conditions, or

privileges of employment.” 42 U.S.C. 2000e-2(a)(1).

That result is “inconsistent with both the text and purpose of Title VII.” Nassar, 570 U.S. at 359.

2. While maintaining its position that “ ‘[a]dverse employment actions include only ultimate employment decisions,’ ” the Fifth Circuit has suggested in some decisions that, “in certain cases, ‘a change in or loss of job

responsibilities … may be so significant and material

that it rises to the level of an adverse employment action.’ ” Welsh, 941 F.3d at 824 (citations omitted). Respondent observes (Br. in Opp. 25-35) that other courts

of appeals have adopted analogous formulations. But a

“significant and material” discrimination limitation on

Section 703(a)(1) suffers from the same flaws as an “ultimate employment decisions” rule, Welsh, 941 F.3d at

824 (citations omitted)—Section 703(a)(1) “contains no

such limitation,” Abercrombie, 575 U.S. at 773.3

Congress knows how to require a particular showing of harm for

an employment-discrimination claim. For example, Section 703(a)(2)

makes it unlawful for an employer “to limit, segregate, or classify

his employees or applicants for employment in any way which would

deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because

3

15

a. The government recently addressed a similar interpretation of Title VII in Forgus v. Esper, No. 18-942.

There, the Fourth Circuit applied its precedent requiring an employee to show “some significant detrimental

effect” from alleged discrimination to state a claim under Section 703(a)(1). Forgus v. Mattis, 753 Fed. Appx.

150, 153 (2018) (per curiam) (citation omitted), petition

for cert. pending, No. 18-942 (filed Jan. 15, 2019). The

court held that an employee who was denied a requested

“lateral” transfer—a transfer that did not involve a

change in pay or benefits—had not alleged the required

“significant detrimental effect.” Ibid. (citations omitted). The government opposed certiorari in that case on

record-specific grounds, Gov’t Forgus Br. 8-10, but

acknowledged that the court’s interpretation of Title

VII was incorrect, even though the government had

sometimes defended that reading in the past, id. at 10-16.4

Of particular relevance here, the government explained that discriminatorily transferring (or declining

to transfer) an employee implicates the “terms” or “conditions” of employment under the ordinary meaning of

Section 703(a)(1). Gov’t Forgus Br. 13 (citation omitted); accord 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,

of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. 2000e-2(a)(2) (emphasis added).

4

Forgus arose under Title VII’s federal-sector provision, 42 U.S.C.

2000e-16(a), which has different language than Section 703(a)(1).

See p. 12, n.2, supra. Consistent with Fourth Circuit precedent,

however, the court and the parties analyzed the case under Section

703(a)(1). See 753 Fed. Appx. at 153.

16

terms, conditions, or privileges of employment’ in violation of Title VII.”) (quoting 42 U.S.C. 2000e-2(a)(1)).

The government added that the Fourth Circuit’s rule

requiring “significant” discriminatory effects would produce untenable results. Gov’t Forgus Br. 14. For example, under that rule, paying an employee one dollar

less in annual salary based on race or sex would not be

actionable because it would not qualify as “significant,”

even though such discrimination falls squarely within

the text of Section 703(a)(1). Ibid.

The same analysis applies to the Fifth Circuit’s decisions limiting Section 703(a)(1) to “significant and material” discrimination. Welsh, 941 F.3d at 824 (citation

omitted). Indeed, the flawed decision in Forgus relied

in part on Fifth Circuit precedent. See 753 Fed. Appx.

at 153 (citing Wheat v. Florida Parish Juvenile Justice

Comm’n, 811 F.3d 702, 709 (5th Cir. 2016)).

b. Respondent contends (Br. in Opp. 24-28) that this

Court’s decision in Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998), supports the “significant and material” discrimination limitation read into Section 703(a)(1)

by the Fifth Circuit and other courts of appeals. That

reasoning reflects a misunderstanding of Ellerth. See

Gov’t Forgus Br. 14-16.

Ellerth involved a claim that a supervisor had created a hostile work environment—and thereby altered

“the terms or conditions of employment”—through “severe or pervasive” sexual harassment of an employee.

524 U.S. at 752. The question in Ellerth was not the

substantive standard for such a claim; the question was

under what circumstances “an employer has vicarious

liability” for sexual harassment by a supervisor. Id. at

754. After reviewing agency-law principles, the Court

17

determined that vicarious liability exists “when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Id. at 765. The Court reasoned that

such a “tangible employment action” by a supervisor

necessarily “requires an official act of the enterprise,”

and therefore supports imposing vicarious liability on

the employer. Id. at 761-762. When no such “tangible

employment action” is taken by a supervisor, the Court

explained, an employer can avoid vicarious liability in

certain circumstances by establishing an “affirmative

defense.” Id. at 764-765.

Ellerth’s identification of the “tangible employment

action[s]” that support automatic imputation of vicarious liability to an employer says nothing about the

meaning of “terms, conditions, or privileges of employment” in Section 703(a)(1). 42 U.S.C. 2000e-2(a)(1). Indeed, this Court has expressly stated that Ellerth “did

not discuss the scope of ” Title VII’s “general antidiscrimination provision,” but rather invoked the concept

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.”

White, 548 U.S. at 64-65 (quoting Ellerth, 524 U.S. at

760-761) (emphases added; brackets in original). Contrary to respondent’s contention (Br. in Opp. 24-28),

Ellerth thus provides no support for the atextual restrictions on Section 703(a)(1) imposed by the Fifth Circuit and other courts of appeals. 5

This Court in White held that retaliation claims under Section

704(a) may be based only on actions “that a reasonable employee

would have found * * * materially adverse.” 548 U.S. at 68. That

5

18

B. The Decision Below Conflicts With The Decisions Of

Other Courts Of Appeals

The decision below conflicts with the decisions of

other courts of appeals. First, the Fifth Circuit’s interpretation of Section 703(a)(1) as prohibiting discrimination in “only ‘ultimate employment decisions,’ ” Pet.

App. 4a (quoting McCoy, 492 F.3d at 559), conflicts with

the Sixth Circuit’s “reject[ion of] the rule that only ‘ultimate employment decisions[]’ * * * can be materially

adverse for the purpose of a Title VII retaliation or discrimination claim.” Michael v. Caterpillar Fin. Servs.

Corp., 496 F.3d 584, 594 (2007), cert. denied, 552 U.S.

1258 (2008). The Ninth Circuit has also rejected “the

Fifth * * * Circuit rule that only ‘ultimate employment

actions’ such as hiring, firing, promoting and demoting

constitute actionable adverse employment actions.”

Ray v. Henderson, 217 F.3d 1234, 1242 (2000) (rejecting

the rule with respect to retaliation claims); see Chuang

v. University of California Davis, 225 F.3d 1115, 1125

(9th Cir. 2000) (relying on Ray in interpreting Section

703(a)(1)).

In addition, several courts of appeals have reached

results inconsistent with the Fifth Circuit’s rejection of

petitioner’s claim. The Seventh Circuit, for example,

limitation is appropriate in the retaliation context because Section

704(a) prohibits “discriminat[ion]” because of protected conduct

but—in contrast to Section 703(a)(1)—does not specify any particular forms of discrimination. 42 U.S.C. 2000e-3(a). As the Court in

White explained, a “material adversity” limitation is necessary in

the retaliation context “to separate significant [harms] from trivial

harms” that would not have “ ‘dissuaded a reasonable worker from

making or supporting a charge of discrimination.’ ” 548 U.S. at 68

(citation omitted). In adopting that reading of the retaliation provision, the Court expressly held that the scope of Section 703(a)(1) is

different because of its different text. Id. at 61-67.

19

reversed a district-court decision that had set aside a

jury verdict for employees who alleged a race-based reassignment to “ditch digging duty” involving “significantly harsher working conditions” than their prior office jobs. Tart v. Illinois Power Co., 366 F.3d 461, 464,

473 (2004). The Fifth Circuit presumably could not

reach that result given its position that the harsher

“working conditions” identified by petitioner are not

among the “ultimate employment decisions” actionable

under Section 703(a)(1). Pet. App. 4a. Relatedly, the

Fifth Circuit has held that “imposing a higher workload” on the alleged basis of a protected trait “does not

qualify” as actionable under Section 703(a)(1). Outley

v. Luke & Assocs., Inc., 840 F.3d 212, 217 (2016); see

Pet. App. 40a. But the Second and Ninth Circuits have

taken the opposite position—that “the assignment of a

disproportionately heavy workload” is actionable under

Section 703(a)(1). Feingold v. New York, 366 F.3d 138,

153 (2d Cir. 2004); see Davis v. Team Elec. Co., 520 F.3d

1080, 1090 (9th Cir. 2008) (similar).

To the extent the Fifth Circuit interprets Section

703(a)(1) to cover only “significant and material” discrimination, Welsh, 941 F.3d at 824 (citation omitted),

that approach is more closely aligned with the formulations adopted by most other circuits, see Pet. 12-16; Br.

in Opp. 26-35. But it is unclear how that standard applies in the Fifth Circuit, given that the court continues

to articulate its “ultimate employment decisions” rule at

the same time. Welsh, 941 F.3d at 824. In any event,

the alternative formulation suggested by some Fifth

Circuit decisions and adopted by most courts of appeals

conflicts with the text and purpose of Title VII. See

Ortiz-Diaz, 867 F.3d at 81 (Kavanaugh, J., concurring);

20

pp. 15-16, supra. Even if there were not a square circuit conflict, such a widespread misreading of a key

employment-discrimination provision would warrant

this Court’s review. See National R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 108-109 (2002) (granting

certiorari to review lower courts’ “various approaches”

to a Title VII question, and adopting a different interpretation based on “the text of the statute”).

Last May in Forgus, the government suggested

that—particularly in light of the record-specific problems in that case—the Court might wish to allow further

percolation on this question before granting review.

See Gov’t Forgus Br. 13-14. But it does not appear that

any court has reconsidered its position in that time.

Given that many circuits have entrenched precedents

dating back decades that can only be revisited through

rehearing en banc, see, e.g., Dollis, 77 F.3d at 781-782,

it may not be practically likely that courts of appeals

will correct their own errors. The government therefore now agrees that this Court’s review is warranted.

C. The Question Presented Warrants Review In This Case

1. The question presented is undeniably important.

Section 703(a)(1) is “Title VII’s core antidiscrimination

provision,” White, 548 U.S. at 61, and questions arise

frequently about whether employer actions fall within

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

42 U.S.C. 2000e-2(a)(1). In recent years, the EEOC has

received between 15,000 and 19,000 Title VII administrative charges per year asserting discrimination in the

“[t]erms [or] condition[s]” of employment. EEOC, Statutes by Issue (Charges filed with EEOC), FY 2010-FY

2019, https://go.usa.gov/xdBBu. Those charges represent more than a quarter of all Title VII charges received by the EEOC in each fiscal year. See ibid.;

21

EEOC, Title VII of the Civil Rights Act of 1964 Charges

(Charges filed with EEOC), FY 1997–FY 2019, https://

go.usa.gov/xdBK3. The “proper interpretation and implementation of ” Section 703(a)(1) thus has “central importance to” employment-discrimination litigation. Nassar, 570 U.S. at 358 (similarly noting the large number

of EEOC charges filed under Title VII’s anti-retaliation

provision).

Clarifying the meaning of “terms, conditions, or privileges of employment” in Section 703(a)(1) would also

have beneficial effects beyond Title VII. Other prominent anti-discrimination statutes, such as the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621

et seq., and the Americans With Disabilities Act of 1990,

42 U.S.C. 12101 et seq., include provisions prohibiting

discrimination with respect to “terms, conditions, [or]

privileges of employment,” 29 U.S.C. 623(a)(1); 42 U.S.C.

12112(a). Numerous whistleblower-protection statutes

prohibit discrimination in the “terms” or “conditions” of

employment because of an employee’s protected conduct. See, e.g., 18 U.S.C. 1514A(a); 21 U.S.C. 399d(a);

49 U.S.C. 42121(a). And the Department of Labor enforces Executive Order No. 11,246, 30 Fed. Reg. 12,319

(Sept. 28, 1965), which incorporates Title VII principles

in regulating federal contractors. See Office of Fed.

Contract Compliance Programs, U.S. Dep’t of Labor,

Federal Contract Compliance Manual §§ 2E03, 2J, 2K,

https://go.usa.gov/xdB8t. Resolving the question presented would thus have broad significance for federal

employment-discrimination law.

2. Although respondent identifies several purported

impediments to review, this case provides a suitable vehicle for this Court to resolve the question presented.

22

Respondent first observes (Br. in Opp. 14 & n.2) that

the decision below is nonprecedential. But the court of

appeals relied on a precedential decision for its relevant

holding. See Pet. App. 4a (citing McCoy, 492 F.3d at

559). And it is not uncommon for this Court to review

unpublished decisions that resolve important questions

based on prior circuit precedent. See, e.g., Mont v.

United States, 139 S. Ct. 1826, 1831 (2019); Nieves v.

Bartlett, 139 S. Ct. 1715, 1721 (2019).

Respondent also contends (Br. in Opp. 18-21) that

petitioner failed to preserve the question presented in

the court of appeals. But this Court may review “an issue not pressed [below] so long as it has been passed

upon.” United States v. Williams, 504 U.S. 36, 41

(1992). And “[t]There is no doubt in the present case

that the [court of appeals] decided the crucial issue,” id.

at 43, when it held that Section 703(a)(1) prohibits discrimination in “only ‘ultimate employment decisions,’

such as ‘hiring, granting leave, discharging, promoting,

or compensating,’ ” Pet. App. 4a (citation omitted); see

Pet. i. Given the Fifth Circuit’s deeply entrenched precedent, moreover, it seems unlikely that petitioner’s raising the issue would have affected that court’s resolution

of his appeal.

Finally, respondent contends (Br. in Opp. 14-17, 3637) that resolving the question presented would not alter the outcome of the case because petitioner cannot

succeed on the merits. The record, however, does not

clearly support that assertion. Petitioner testified in a

deposition that black crew members were assigned to

work outside “in the heat,” while white crew members

worked inside, and that his supervisors refused his requests for a “rotation.” D. Ct. Doc. 33-6, at 20, 26-28

(June 29, 2017). Petitioner also submitted declarations

23

from two witnesses who purported to corroborate his

account. D. Ct. Doc. 33-1, at 1-2 (June 29, 2017); D. Ct.

Doc. 33-2, at 1-3 (June 29, 2017). The district court rejected those declarations for failure to establish foundation or personal knowledge and concluded that petitioner had failed to identify similarly situated white

comparators. Pet. App. 35a-38a. The court of appeals,

however, “[a]ssum[ed]” that “the declarations [had]

identif[ied] similarly situated comparators,” and then

resolved the case on the purely legal ground that petitioner’s allegations did not state a claim under Section

703(a)(1). Id. at 4a.

If this Court were to reverse the court of appeals’

decision on that legal question, the lower courts could

determine on remand whether petitioner presented sufficient evidence to allow his claim to proceed under a

proper interpretation of Section 703(a)(1). The court of

appeals could also, if appropriate, review the district

court’s ruling on the admissibility of the declarations

supporting petitioner’s account. The government takes

no position on the proper resolution of those case-specific

issues. But it appears from the record that petitioner

has at least some possibility of surviving a motion for

summary judgment. Respondent’s assertion that this

Court’s resolution of the question presented could not

have any practical effect is accordingly unsound.

24

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

ANNE W. KING

Attorney

Equal Employment

Opportunity Commission

MARCH 2020

NOEL J. FRANCISCO

Solicitor General

ERIC S. DREIBAND

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

ELLIOTT M. DAVIS

Acting Principal Deputy

Assistant Attorney General

ALEXANDER V. MAUGERI

Deputy Assistant Attorney

General

CHRISTOPHER G. MICHEL

Assistant to the Solicitor

General

TOVAH R. CALDERON

ANNA M. BALDWIN

Attorneys