Amicus Curiae Brief — Jatonya Clayborn Muldrow, Petitioner v. City of St. Louis, Missouri, et al.

No. 22-193

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JAYTONYA CLAYBORN MULDROW,

Petitioner,

v.

CITY OF ST. LOUIS, STATE OF MISSOURI, et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------BRIEF OF THE LEGAL AID SOCIETY AND

THE NATIONAL EMPLOYMENT LAW PROJECT

AS AMICI CURIAE IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------JIM DAVY

Counsel of Record

ALL RISE TRIAL & APPELLATE

P.O. Box 15216

Philadelphia, PA 19125

(215) 792-3579

jimdavy@allriselaw.org

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

Table of Contents .................................................

i

Table of Authorities .............................................

ii

Interest of the Amici Curiae ................................

1

Summary of Argument ........................................

2

Argument .............................................................

3

I.

Discriminatory job scheduling and work

assignments impose real harms that Title

VII remedies by its text .............................

5

II.

Discriminatory performance evaluations

and discipline impose real harms that

Title VII remedies by its text .................... 16

III.

Discriminatory denial of job training and

opportunities to build skills imposes real

harms that Title VII remedies by text ...... 22

IV.

Discriminatory day-to-day working conditions

impose real harms that fall within the

heartland of Title VII’s text ....................... 27

Conclusion............................................................ 32

ii

TABLE OF AUTHORITIES

Page

CASES

Chambers v. District of Columbia,

35 F.4th 870 (D.C. Cir. 2022) (en banc) ............. 20, 22

Davis v. Legal Servs. Ala.,

19 F.4th 1261 (11th Cir. 2021) .......................... 19, 20

Douglas v. Donovan,

559 F.3d 549 (D.C. Cir. 2009) ..................................21

Ellis v. Compass Group USA, Inc.,

426 F. App’x 292 (5th Cir. 2011) ..............................29

Fonseca v. Sysco Food Servs. of Ariz., Inc.,

374 F.3d 840 (9th Cir. 2004) ....................................26

Hamilton v. Dallas Cnty.,

No. 21-10133, ___ F.4th ___

(5th Cir. Aug. 18, 2023) (en banc) ...........................11

Haugerud v. Amery Sch. Dist.,

259 F.3d 678 (7th Cir. 2001) .............................. 12-14

Hemphill v. United Parcel Serv., Inc.,

975 F.Supp.2d 548 (D.S.C. 2013)....................... 26, 27

Israel v. U.S. Bank,

___ F.Supp.3d ___, 2023 WL 1331329 (D. Ariz.

Jan. 31, 2023) ...................................................... 9, 10

Jackman v. Fifth Judicial Dist.

Dep’t of Corr. Servs.,

728 F.3d 800 (8th Cir. 2013) ....................................12

Johnson v. Aluminum Co. of America,

397 F.Supp.2d 688 (M.D.N.C. 2005), aff ’d,

205 F. App’x 152 (4th Cir. 2006) ........................ 24, 25

iii

TABLE OF AUTHORITIES—Continued

Page

Lopez v. Kempthorne,

684 F.Supp.2d 827 (S.D. Tex. 2010) ..........................6

Marrero v. Goya of P.R., Inc.,

304 F.3d 7 (1st Cir. 2002) ..........................................9

Monroe v. City of Danbury,

No. 3:09-cv-2132, 2014 WL 3943632

(D. Conn. Aug. 11, 2014) ............................................7

Morales-Vallellanes v. Potter,

605 F.3d 27 (1st Cir. 2010) .................................... 8, 9

Morgan v. Triumph Aerostructures, LLC,

296 F.Supp.3d 911 (M.D. Tenn. 2017) ............... 28, 29

Pena v. Clark Cnty.,

21-cv-5411, 2023 WL 3160157

(W.D. Wash. Apr. 28, 2023) ................................ 25, 26

Perez v. Guzman,

No. 20-1484, 2022 WL 1746658

(D.D.C. May 31, 2022) ....................................... 18, 19

Peterson v. Linear Controls,

757 F. App’x 370 (5th Cir. 2019) (per curiam).... 12, 30

Piercy v. Maketa,

480 F.3d 1192 (10th Cir. 2007) ................................15

Raley v. Board of St. Mary’s Cnty. Com’rs,

752 F.Supp. 1272 (D. Md. 1990) ........................ 13, 14

Sanchez v. Denver Pub. Schs.,

164 F.3d 527 (10th Cir. 1998) ..................................17

Shackelford v. Deloitte Touche,

190 F.3d 398 (5th Cir. 1999) .............................. 22, 23

iv

TABLE OF AUTHORITIES—Continued

Page

Stavropoulos v. Firestone,

361 F.3d 610 (11th Cir. 2014) ............................ 17, 18

Stewart v. Union Cnty. Bd. of Educ.,

655 F. App’x 151 (3d Cir. 2016) ......................... 30, 31

Stone v. La. Dep’t of Revenue,

590 F. App’x 332 (5th Cir. 2014) ..............................10

Taylor v. Small,

350 F.3d 1286 (D.C. Cir. 2003) .......................... 20, 21

Ugorji v. N.J. Envtl. Infrastructure Trust,

529 F. App’x 145 (3d Cir. 2013) ...............................31

United States Equal Emp’t Opportunity Comm’n

v. Golden Entm’t,

20-cv-2811, 2023 WL 4134696

(D. Md. Jun. 22, 2023) ........................................... 7, 8

Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72 (2d Cir. 2015) .......................................28

Wheeler v. BNSF Ry. Co.,

418 F. App’x 738 (10th Cir. 2011) ............................28

Williams v. R.H. Donnelley, Corp.,

368 F.3d 123 (2d Cir. 2004) .....................................11

STATUTES

42 U.S.C. § 2000e-2(a)(1) .......................................... 2, 4

1

INTEREST OF THE AMICI CURIAE

The Legal Aid Society is the oldest and largest provider of legal assistance to low-income families and

individuals in the United States. The Society’s Civil

Practice operates trial offices in all five boroughs of

New York City providing comprehensive legal assistance. The Society’s Employment Law Unit represents

low-wage workers in employment-related matters

such as claims for discrimination, unpaid wages, and

retaliation for objecting to wage theft or discrimination. In the Society’s experience, low-wage workers,

who generally lack means of recourse, are all too often

subjected to discriminatory treatment in the day-today terms and conditions of their employment, including discriminatory job scheduling and work assignments, discriminatory evaluations and discipline, and

discriminatory denial of access to training and other

growth opportunities. These forms of discriminatory

mistreatment have a profound impact on our clients’

well-being. Moreover, in Amicus’s experience, employers who discriminate based on prohibited characteristics often use these forms of discriminatory treatment

to try to force employees out of their jobs without having to fire them.1

The National Employment Law Project (“NELP”)

is a national non-profit legal organization with over 50

1

Amici file this brief pursuant to Sup. Ct. R. 37.3. This brief

has been authored entirely by Amici’s counsel, and no Party or

Party counsel, or any other person or entity, has contributed

money or other financial support to fund the preparation or filing

of this brief. See Sup. Ct. R. 37.6.

2

years of experience advocating for the employment and

labor rights of low-wage and unemployed workers.

NELP seeks to ensure that all employees, and especially the most vulnerable ones, receive the full protection of labor and employment laws, including

protections against discrimination at work. NELP’s

community-based partners, including worker centers,

unions, and other worker-support organizations in

communities across the 50 states, have long seen the

kinds of discrimination at issue here, and have a particular interest in how this Court resolves this case.

NELP has litigated and participated as an amicus curiae in numerous cases in a variety of fora, including

at this Court, to address the importance of eradicating

discrimination in labor and employment.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

In both her certiorari petition and opening brief,

Appellant persuasively explains why the various

glosses that the Courts of Appeal have applied to Title

VII contravene the text of the statute. See 42 U.S.C.

§ 2000e-2(a)(1). This Court should restore Title VII to

the scope of its plain text, giving effect to the statute

as enacted by Congress, and need not consider more

than the text and surrounding statutory provisions to

do so. Amici write to underscore the stakes of this case

for millions of workers across the country, and to explain to the Court the effect of well-developed but atextual doctrines through which federal courts have for

3

decades imposed heightened requirements on workers

who have suffered discrimination.

By requiring “material disadvantage,” “objectively

tangible harm,” an “ultimate employment decision,” or,

as the Eighth Circuit has framed its longstanding

precedent in this and other cases, “significant disadvantage,” the Courts of Appeals have tacitly blessed

numerous forms of unlawful workplace discrimination

that impose enormous burdens on workers. Indeed, attorneys at the Legal Aid Society and elsewhere have

long had to explain to current and prospective clients

that federal courts have allowed discrimination in, for

example: lateral job transfers; shift scheduling; imposition of discipline; performance evaluations; denial of

training; and provision of merit-based performance

awards. These types of discrimination impose dignitary, professional, and—even where Courts do not

recognize it as such—economic harm, which poisons

American workplaces. Amici urge the Court to consider this context on the way to reversing the Eighth

Circuit and restoring Title VII to the clear bounds set

out in its plain text.

---------------------------------♦---------------------------------

ARGUMENT

The Courts of Appeals have all imposed different

but uniformly atextual glosses on the plain text of

Title VII. Title VII makes it unlawful for an employer

to discriminate against an employee “with respect to

his compensation, terms, conditions, or privileges of

4

employment,” on the basis of various characteristics.

42 U.S.C. § 2000e-2(a)(1). By purporting to require

some sort of heightened showing of harm for plaintiffs

alleging discrimination as to terms and conditions of

their employment, federal courts have effectively removed workers who experience several types of clear

workplace discrimination from receiving the protection of the law. And as a survey of some of the decisions

creating and applying those atextual standards

demonstrates, the people who lost those suits suffered

real and serious discrimination of exactly the types

that Congress addressed.

The types of discrimination that have flourished

under the erroneous interpretation of the law affect

workers of all sorts. Discrimination falls particularly

hard on hourly workers and others who do not control

their own schedules, because courts have treated

avowedly discriminatory schedule assignments as

non-actionable. But even salaried workers in fields requiring advanced degrees regularly suffer workplace

discrimination with no remedy. Amici highlight for the

Court four different types of discrimination that federal courts have allowed: 1) discrimination in job

scheduling and transfers; 2) discrimination in performance evaluations, discipline, and workplace recognition; 3) discrimination in provision and denial of

workplace training; and 4) discrimination in physical

working conditions. The decisions allowing these types

of discrimination downplay clear and intentional discrimination, ignore dignitary harms the law intended

to address, and even often lack internal consistency on

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their own terms—including by dismissing or refusing

to draw inferences about future economic harm that

might result from poor performance evaluations or

denial of training. But the human toll suffered by the

workers in these cases—and by the greater number of

workers who faced discrimination but never filed suit

precisely because of the state of the law—underscores

the need for reversal and restoration of Title VII to its

textual bounds.

I.

Discriminatory job scheduling and work assignments impose real harms that Title VII

remedies by its text.

Courts have regularly dismissed claims or granted

summary judgment to employers when workers have

alleged clear and offensive workplace discrimination

concerning shift scheduling; time and location of work

assignments; permission to leave or miss work for

emergencies or other necessary appointments; and

even inter-city or -state job transfers (or transfer request rejections) that burden workers and should be

actionable. While shift-scheduling often implicates the

interests of hourly workers, salaried workers are not

exempt from these types of discrimination. And as anyone who has ever worked a job understands, the time

and place of one’s employment often has an outsized

effect on the “terms” and “conditions” of one’s employment—certainly, of one’s day-to-day experience of their

job. The stories of the workers involved in these failed

cases underscore why situations like these should fall

within Title VII protections.

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1. Felicia Lopez exemplifies the outsized effect

that work assignments and scheduling can have on a

worker’s life. For nearly a year, her employer discriminatorily blocked her from working pursuant to “a telecommuting agreement even though she lived 78 miles

from work and the stress of driving round trip each

day” aggravated an underlying medical condition.

Lopez v. Kempthorne, 684 F.Supp.2d 827, 847-48 (S.D.

Tex. 2010). Her employer took many other steps to

make her conditions of employment impossible, including “withholding approval and signature of engagement letters” she needed to proceed with work, “giving

her uncertain workloads to create chaos, making numerous management changes” that affected her, and

“forcing [her] to perform secretarial tasks” despite that

being outside of her job description as a Supervisory

Auditor at the Department of the Interior. Id. at 845,

848. The Department also denied her the opportunity

“to work on many projects,” including ones with supervisory responsibilities that would have helped advance

her career. Id. at 847. Despite all of this, the Court

granted summary judgment on every one of her Title

VII claims except as to having been unlawfully denied

a promotion with a pay increase, treating the rest as

not an “adverse employment action” because it did not

involve an “ultimate employment decision.” Id. at 885.

The Department denying Lopez a promotion

straightforwardly violated the law because of the lost

raise, but some courts have relied upon precedents

holding that claims about shift scheduling do not

meet wrongly heightened standards to ignore even

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monetary harms that result from such discrimination.

Joseph Monroe sued the City of Danbury because his

employer, the Police Department, had refused a potential transfer to a special investigative division. It had

the same base salary and job description but came with

“flexible hours” and “increased income potential by virtue of more overtime hours and more job opportunities,” to say nothing of “greater prestige” given the

work involved. Monroe v. City of Danbury, No. 3:09-cv2132, 2014 WL 3943632, *16 (D. Conn. Aug. 11, 2014).

The Court granted the City’s motion for summary

judgment because it did not view the lateral transfer

as “materially significant for purposes of establishing

an adverse employment action. Id. at *16. By treating

the claim as primarily about a lateral transfer, the

Court downplayed the potential income that Monroe

alleged (and testified at his deposition) that he stood to

lose. Similarly, Lisa Payton faced discrimination that a

court deemed non-actionable after dismissing clear

monetary harms. Ms. Payton worked as a bartender for

a casino that had two very different bars—one at the

center of the floor, and one near the lobby. United

States Equal Emp’t Opportunity Comm’n v. Golden

Entm’t, 20-cv-2811, 2023 WL 4134696, *1 (D. Md. Jun.

22, 2023). Ms. Payton was initially assigned primarily

to the one at the center of the floor, where bartenders

could made as much as ten times the amount of tips

during an average shift. Id. at *2. After reporting physical and verbal sexual harassment, the casino stopped

assigning her shifts at the more lucrative bar. Id. at *4.

Despite acknowledging the resulting economic injury—“the amount of tips received at [the lobby] bar

8

are typically lower than [the floor bar]”—the District

Court treated the discriminatory scheduling as “not an

adverse employment action” because “a change in work

schedule is not typically” treated as one by courts. Id.

at *9.

Regardless of lost pay, however, the days and times

that someone works can have an outsized impact on a

worker’s quality of life. Despite the ways that workers

experience discrimination in those conditions of employment, numerous Circuits treat discriminatory

shift assignments as non-actionable. The case of Angel

David Morales-Vallellanes illustrates how these precedents have built upon each other over time. Mr. Morales sued his employer, the United States Postal

Service, because he “expressed interest in . . . [a] position that was expected to come with Saturdays and

Sundays off, a coveted position given that many USPS

employees had an irregular weekend schedule,” only

for the USPS to immediately turn around and “reclassif[y] the position so that . . . it came with Thursdays

and Sundays off instead.” Morales-Vallellanes v. Potter,

605 F.3d 27, 30 (1st Cir. 2010). The USPS also required

him to perform more onerous and less desirable tasks

within his job compared to his colleagues. Id. at 38.

Initially, a jury awarded Mr. Morales $500,000, id. at

29—but the First Circuit vacated the verdict and

damages award after finding that what he had proven

at trial did not amount to “any material adverse employment action.” Id. at 30. In explaining why, the

Court cited and characterized its own prior precedent

as rejecting Title VII liability for “[s]uch a minor

9

disruption,” in a case that had “involved a permanent

lateral reassignment” and the plaintiff had been “required to do more work, subjected to ‘extreme supervision,’ and forced to undergo a period of probation.” Id.

at 38 (citing Marrero v. Goya of P.R., Inc., 304 F.3d 7,

23 (1st Cir. 2002)). Because a different, prior worker

had been subjected to workplace discrimination under

a wrongly heightened standard, Mr. Morales was, too.

Work scheduling can have an outsized effect on a

worker’s quality of life for many reasons, even besides

when a person has time off work. Jaie Israel, for example, sought a transfer to a different branch of her bank

because her existing branch manager initially did not

provide her with a chair—and later, provided an “unsafe” chair—during the late stages of her pregnancy.

Israel v. U.S. Bank, ___ F.Supp.3d ___, 2023 WL

1331329, *2 (D. Ariz. Jan. 31, 2023). Her boss also “critiqued her for taking time off for her doctor’s appointments.” Id. During and after her maternity leave, her

boss took other steps that reemphasized to her that

another location might serve her better, including removing her business cards without her knowledge and

refusing to offer a “private and sanitary location to

pump breast milk.” Id. at *3. Ms. Israel had difficulty

securing a lateral transfer to avoid that discrimination

and had to take disability leave; ultimately she was

verbally offered a personal banker position at another

branch but “did not receive the position” because after

offering it to her, the “role was offered to someone else”

by the bank. Id. at *4. Despite this, the Court granted

summary judgment to her employer as to the denial of

10

the personal banker position and removal of her business cards, finding that neither could amount to an

“adverse employment action.” Id. at *14-15.

2. Like days and times, the location of one’s work

has an outsized effect on a worker’s life, and discrimination in where people work should be actionable, too.

Joanne Stone, like Ms. Lopez, repeatedly had her employer force her to undertake time-consuming commutes for discriminatory reasons. First, her boss

“slowed down her transfer to Houston,” a better location for her. Stone v. La. Dep’t of Revenue, 590 F. App’x

332, 334 (5th Cir. 2014). Then, her boss “reduced” her

telecommuting privileges “from three days per week to

one day per week,” even while “Caucasian employees

were granted more telecommuting privileges.” Id. at

335. Later, when she “requested an out-of-state position near her home in Mobile, Alabama,” her employer

denied that request twice, even though “Caucasian employees were being granted similar requests.” Id. Her

allegations show how difficult an employer can make

life for a worker when it decides to discriminate—the

commutes at issue, and the frequency with which it

forced Ms. Stone to undertake them, were time-consuming and onerous. But the Fifth Circuit affirmed a

dismissal of her complaint because she had not alleged

an “adverse employment action,” which it further explained required an “ultimate employment decision.”

Id. at 339. (The Fifth Circuit very recently corrected its

precedent, acknowledging that its atextual standard

had stripped legal protections from workers exactly

11

like Ms. Stone. Hamilton v. Dallas Cnty., No. 21-10133,

___ F.4th ___ (5th Cir. Aug. 18, 2023) (en banc).)

The Second Circuit also affirmed summary judgment entered in favor of Charlina Williams’ employer,

after the employer had denied her a requested geographical transfer for discriminatory reasons. Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 124 (2d

Cir. 2004). In doing so, it illustrated a recurring disconnect between courts and the everyday experience of

workers. The Court there treated the denial of Williams’ transfer request as not an adverse employment

action because it would have involved a reduction in

pay. Id. at 128. But the Court ignored Williams’ reasons

for wanting the transfer despite the pay cut—she had

lived and worked in Las Vegas for years and had ended

up having to “relocate to Purchase, New York” to take

a promotion within the company. Id. at 124. She

wanted the internal lateral transfer because it meant

returning to Las Vegas, “where she still maintained a

home” and was still already working “one week out of

every month.” Id. at 125. Work is about more than

money; a company that denied Williams a transfer for

discriminatory reasons and required her to work in

Purchase, NY instead of Las Vegas would certainly

have affected the terms and conditions of her employment.

3. Treating discriminatory scheduling as nonactionable because of wrongly heightened pleading

standards ultimately ends up allowing offensive, explicit animus, despite the command of Title VII’s plain

text. While working for a company called Linear

12

Controls, David Peterson, who is Black, alleged that

“his supervisor denied him leave from work to visit a

sick family member” on a discriminatory basis—which

would be bad enough as it was. But Peterson also alleged that his employer, in discussing the denial with

another employee, “said ‘f*** that n*****.’ ” Peterson v.

Linear Controls, 757 F. App’x 370, 373 (5th Cir. 2019)

(per curiam) (asterisks in original). The Fifth Circuit

affirmed the dismissal of his Title VII claim “because

Peterson was not subjected to an adverse employment

action.” Id. at 374. Similarly, The Eighth Circuit affirmed summary judgment in a case where Ebony

Jackman’s supervisor explicitly said that “she did not

like the three black women,” “suggested that Jackman

switch to a part-time schedule to better care for her

familial responsibilities,” and subjected her to other

race and sex discrimination. Jackman v. Fifth Judicial

Dist. Dep’t of Corr. Servs., 728 F.3d 800, 802-03 (8th Cir.

2013). The Court held that none of that amounted to

“[a]n adverse employment action,” which it “define[d]

as a tangible change in working conditions that produces a material employment disadvantage.” Id. at

804. And Faye Haugerud, while trying to do her job as

a high school custodian, suffered “numerous discriminatory and harassing incidents” that included a male

colleague explicitly and repeatedly telling their coworkers that “no woman could do my job” and that

“women working in the kitchen at the high school

should not get the same pay as men.” Haugerud v.

Amery Sch. Dist., 259 F.3d 678, 686 (7th Cir. 2001). The

Seventh Circuit held that “[w]hile many of these instances might have been harassing . . . none of them

13

resulted in any materially adverse change in the

terms, conditions, or privileges of plaintiff ’s employment” under that Court’s wrongly heightened standard for Title VII claims. Id. at 691-92.

Beyond explicit verbal discrimination, some courts

have even treated undisputed physical harassment as

non-actionable because of the atextual standards.

Mary Raley, for example, had a boss who “touched her

on various occasions,” subjected her to “various offensive touchings and other sexual innuendos,” and “uninvitedly placed his hand on her thigh underneath her

dress.” Raley v. Board of St. Mary’s Cnty. Com’rs, 752

F.Supp. 1272, 1274-75 (D. Md. 1990). Indeed, the record

there showed that her boss “admit[ted] doing” this to

various women employees. He ultimately gave her an

unsatisfactory performance evaluation, issued discipline that a board unanimously reversed, and proposed

to laterally transfer her. Id. at 1275. But the District

Court granted summary judgment to her employer because in its view, “[t]he touches and verbal comments

were not employment decisions” at all, and thus did

“not rise to the level of being ‘ultimate employment decisions.’ ” Id. at 1278. Indeed, the Court neatly illustrated the effect of the atextual standard, explaining

that in a sexual harassment case, the standard is “offensive and hostile work environment . . . rather than

the higher sex discrimination standard of adverse employment action” courts imposed on Title VII plaintiffs.

Id. It similarly characterized the performance evaluation, discipline, and proposed lateral transfer as “an

increase of predictable tension in an office after a

14

discrimination charge is filed,” but “not adverse employment action.” Id. at 1281.

4. Whether involving explicit animus or not,

workplace discrimination that involves assigning people different work on categorical bases affects workers’

day-to-day experience of their job. Haugerud, for example, also saw her School District employer instruct

male custodians “not to assist female custodians,”—

i.e., Haugerud, the only female custodian at her

school—and even tell “maintenance people [not to] assist her with maintenance tasks even though her job is

primarily custodial.” Id. One male maintenance

worker’s boss reprimanded him for helping Haugerud,

and when she requested assistance she “often [did] not

hear back or receive[d] a delayed response” and “was

forced to enlist her husband,” who was not employed

by the School District. Her boss also assigned her “extra maintenance duties” to try to force her to take a

less desirable overnight shift so that a male colleague

could take her more desirable (and generally easier)

day shift. Id. at 685. When she stayed on the day shift

in the face of pressure, the District “required [her] to

clean restrooms at the high school though the male day

custodian at the middle school [ ] is not required to do

so.” Id. at 687. And as noted, the Seventh Circuit described all of that as not having “resulted in any materially adverse change” in the terms or conditions of her

employment. Id. at 691-92.

Haugerud’s case is not uncommon. Many workplaces assign “certain job duties . . . restricted by the

sex of an employee,” for purportedly legitimate

15

reasons, like the El Paso County Sheriffs Office. Piercy

v. Maketa, 480 F.3d 1192, 1195 (10th Cir. 2007). There,

by policy, “women are allowed to work in Alpha 3”—a

wing of the Colorado Springs Jail—“by themselves, but

men can work there only if accompanied by another

deputy sheriff (male or female).” Id. Because “women

are often required to work on Alpha 3 alone,” women

like Linda Piercy were “not allowed to bid for shifts in

other areas, despite any seniority they might have.” Id.

The jail justified this on the basis that it did not want

male deputies engaging with women detainees alone

(although it allowed women deputies to engage with

male detainees alone). But because of that policy, when

the office posted a new job opening at a different facility, it specified that “only requests from male deputies

will be accepted.” Id. at 1196. This mattered particularly because “work in Metro,” the other facility, “would

be less arduous and stressful” than at the Alpha 3 wing

and would involve more flexibility for leave. Id. at 1204.

The Tenth Circuit affirmed summary judgment as to

the discriminatory shift-assignment polices, calling

them “a mere inconvenience” that “did not constitute

an adverse employment action.” Id. And while it reversed in part as to the explicitly male-only hiring, it

still explained that on remand, if El Paso County could

establish that the Metro job amounted to a lateral

transfer from the Alpha 3 wing, then even that would

not amount to an actionable “adverse employment action” under Title VII. Id.

16

II.

Discriminatory performance evaluations

and discipline impose real harms that Title

VII remedies by its text.

Courts have also regularly dismissed claims or

granted summary judgment when workers have alleged that their employers disciplined them but not

other workers (or disciplined them more harshly than

other workers) who undertook the same conduct, solely

on the basis of a protected characteristic; gave them

worse performance reviews based on racial or other animus; and otherwise held workers to different standards on the basis of race, gender, religion, or other

statutorily-identified bases. In doing so, Courts’ logic

often falls apart even on its own terms—performance

reviews regularly set employees up for promotions or

other changes in roles that come with pay increases,

meaning that discriminatory discipline and negative

reviews create actionable economic harm even under

most Circuits’ atextual current standards. Such obvious resulting economic harm should not be necessary,

however, as the facts of the cases illustrate.

1. The recurring threat of discriminatory discipline can affect a worker’s terms and conditions of

their job. Take, for example, Susan Sanchez. Ms.

Sanchez taught fourth grade for fourteen years in the

Denver Public School District—after twenty-four years

of teaching elsewhere and five years of serving as a

principal. When the School District transferred her to

teach second grade at a different school, her new principal revealed clear age-based animus immediately—

the new principal “introduced all the new teachers

17

except her and said something like ‘it is so nice to have

some beginning bright, young teachers in the building,” and then only eventually introduced Ms. Sanchez

“after prompting.” Sanchez v. Denver Pub. Schs., 164

F.3d 527, 530 (10th Cir. 1998). The new principal

wielded her disciplinary powers over Ms. Sanchez—

and the outsized effect that discipline could have on

Ms. Sanchez’s career—to control the terms and conditions of Ms. Sanchez’s job. She “threatened to put Ms.

Sanchez on a plan for improvement” with no real basis,

and without making similar threats to younger teachers. Id. She also enforced rules against Ms. Sanchez

that she did not enforce against others, “requir[ing]

Ms. Sanchez to bring in a doctor’s note whenever she

took sick leave, even though other teachers were not

required to do so.” Id. The Tenth Circuit affirmed summary judgment because in its view those facts “simply

[did] not rise to the level of materially adverse employment action” from that Circuit’s atextual gloss on Title

VII. Id. at 533.

Relatedly, courts use atextual standards to absolve

employers that wrongfully impose discriminatory discipline and subject workers to onerous dispute processes to reverse it. Carol Stavropoulos had received

years of “excellent performance evaluations,” but after

she helped a colleague dispute sex discrimination, “the

faculty voted not to renew Stavropoulos’s contract,”

because they suddenly viewed her as “not collegial.”

Stavropoulos v. Firestone, 361 F.3d 610, 613 (11th Cir.

2014). Her supervisor, the Director of her School, specifically “solicited and compiled letters” to support the

18

non-renewal, and only the intervention of the Dean

allowed her to keep her job. Id. The Director gave her

a negative performance evaluation the ensuing year

and “encouraged faculty members to relate to [her

tenure review] committee their negative experiences”

with her, and another school leader fabricated rumors

that she had a mental illness to impede her achieving

tenure. Id. at 614. When that committee voted not to

renew her contract, she had to hire an attorney and

appeal to the full faculty senate—which “concluded

that the art school faculty had improperly voted not to

renew [her] because of her sex,” and protected her job.

Id. at 615. The entire ordeal affected her job, cost her

money, and even the school regarded it as sex discrimination—but both the District Court and the Eleventh

Circuit treated it as non-actionable. In their view, “the

acts [she] complains of ultimately had no effect on her

employment status” and were thus “too insubstantial

to be considered an adverse employment action.” Id. at

617-18. That rule protects avowedly discriminatory intent by an employer, because of the greater lengths a

worker went to fight aggressive discrimination.

Numerous employers, however, go beyond threatening or failing to impose discriminatory discipline to

imposing and upholding it—which Courts also generally hold non-actionable. George Perez, for example,

was put on probation and received a negative performance rating for discriminatory reasons, including

having his employer “repeatedly remove[ ]” his accomplishments “from the official performance record system.” Perez v. Guzman, No. 20-1484, 2022 WL 1746658,

19

*15 (D.D.C. May 31, 2022). This came after Mr. Perez’s

boss had failed to provide him with a requested performance assessment that he’d sought to ascertain his

standing—a worry that his employer validated by revoking his supervisory duties and demoting him from

his Branch Chief role entirely. Id. at *3. His employer

replaced Mr. Perez, a Hispanic man, with a Caucasian

man, and then also paid his replacement more. Id.

The Court there explained that “removal of important

assignments, lowered performance evaluations, and

close scrutiny of assignments by management” could

not amount to adverse employment actions. Id. at

*10-11, *16.

Employers also discriminate by imposing harsher

penalties on some workers than others for discriminatory reasons—and even when it clearly alters the

conditions of someone’s job, courts treat that as nonactionable, too. When Artur Davis ran Legal Services

of Alabama, for example, the Board accused him of

spending “outside the approved budget” and “creating

new initiatives without Board approval,” among other

conduct. Davis v. Legal Servs. Ala., 19 F.4th 1261, 1264

(11th Cir. 2021). It suspended him with pay pending an

investigation. Id. The Board’s treatment of Davis, who

is Black, stood in stark contrast to the treatment of two

former white leaders at the organization—both of

whom “participated in worse alleged misconduct,” including having “made sexually harassing remarks to

female employees” and having “abused mileage expenses” for personal financial gain. Id. “Neither was

placed on suspension,” paid or otherwise, before

20

departing the organization. Id. Davis’s suspension, unlike the absence of discipline the Board imposed on his

predecessors, entirely stopped him from doing his job—

by physically barring him from his office and preventing him from directing any of the employees of the organization, the Board had assuredly altered the terms

and conditions of the job they had hired him to do. But

the Eleventh Circuit affirmed summary judgment because the paid suspension “could not constitute an adverse employment action” under Title VII. Id. at 1263.

2. Beyond discipline, many employers use discriminatory performance evaluations to create possible pretext to cover for other discriminatory job

decisions. The D.C. Circuit has only very recently fixed

its own atextual interpretation of Title VII. Chambers

v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022) (en

banc). But before it did, worker litigants in that Circuit

had employers use performance evaluations to discriminate against them, safe from any legal remedies

under Title VII. Carolyn Taylor worked for the federal

government at the Smithsonian Institution, where her

employer dropped her down a performance rating even

though she had “met or exceeded both of her critical

responsibilities” on which the evaluation depended.

Taylor v. Small, 350 F.3d 1286, 1289 (D.C. Cir. 2003).

Despite Ms. Taylor trying to get the evaluation corrected, her boss not only declined to fix it, but gave her

“the same overall rating” the next year. Id. Indeed, like

Ms. Sanchez, Ms. Taylor’s boss wrongly put her on a

performance improvement plan and didn’t promptly

remove her from it despite acknowledging that she had

21

satisfied it. Id. at 1289. That plan and her wrongfully

lower rating even had an undisputed economic effect,

as it deprived Ms. Taylor of $500 worth of bonus pay.

Id. at 1290. Despite all of this, the D.C. Circuit affirmed

summary judgment to her employer based upon the

lack of an “adverse employment action.” Id. at 1292.

Perplexingly, the Court noted that there was no evidence that the long delay before getting her evaluations corrected and getting the attendant bonus—and

ultimately having to go to the EEOC to get her boss to

do it—“affected her grade or salary,” id. at 1293, apparently distinguishing salary from total compensation.

Atextual standards encourage exactly such parsimonious interpretation of possible economic harms,

rather than treating the unlawful discrimination itself

as the problem. For example, when Frederick Douglas’s

boss “guaranteed that Douglas would not receive an

award” for discriminatory reasons, the D.C. Circuit

treated it as non-actionable because Douglas might

not have received the award—which had a “substantial monetary” component—even if his boss had not

discriminated against him. Douglas v. Donovan, 559

F.3d 549, 555 n.3 (D.C. Cir. 2009). In finding that he

had not provided enough evidence to make out an

“objectively tangible harm,” id., the Court dismissed

not only the denied chance at real money, but the clear

animus that drove his boss’s discriminatory action—

exactly what Title VII remedies. Scrutinizing the

chance that he would have had at the award followed

directly from the wrongly heightened standard that

22

the D.C. Circuit employed pre-Chambers, and missed

the point of Title VII entirely.

III. Discriminatory denial of job training and

opportunities to build skills imposes real

harms that Title VII remedies by text.

Courts also regularly dismiss claims or grant

summary judgment to employers when workers have

alleged that their employers denied them access to

job training or skill-building classes; denied them opportunities to learn new skills on the job; and otherwise hampered their changes to advance in their

careers, on the basis of race, gender, religion, or other

discriminatory bases. As with performance reviews

and workplace discipline, training and skill-building

opportunities have a clear connection to future career

opportunities and pay increases—meaning that suits

about this type of conduct should meet even federal

courts’ heightened, atextual standards. But here, too,

many courts’ opinions often fail even on their own

terms and illustrate why this Court should reverse and

restore Title VII to its textual boundary.

1. Johnnie Shackelford’s employer specifically

deterred her from applying for a new position, she alleged, on the basis of her race. Her manager presented

the deterrence as a favor, advising her not to seek the

new job because “she would ‘probably be better off ’ remaining” in her existing position, which he said presented better prospects to work more overtime and

make more money. Shackelford v. Deloitte Touche, 190

23

F.3d 398, 402 (5th Cir. 1999). That turned out to be a

lie—which Ms. Shackelford figured out when the position “was instead filled by a white woman who has

since frequently worked overtime.” Id. For training

opportunities that she ultimately did seek, her boss

simply denied them outright. Ms. Shackelford “requested training on a new computer software used for

filing” because she was occasionally “required to assist

in that task.” Id. Despite denying her request, her boss

actively trained a white coworker on the new software.

The lies and denials in that case were especially brazen; when they happened, Ms. Shackelford was “the

only potential class member” in her boss’s department,

of a pending class action suit “alleging company-wide

race discrimination.” Id.2 Despite all of this, the Fifth

Circuit affirmed summary judgment on her claims

about training because the denials of training were not

“ultimate employment decision[s].” Id. at 406. In doing

so, the Court illustrated how pernicious the heightened

standards are—even though training specifically allows people to take on more responsibilities and advance in their career, the Court wrote that there was

“no significant evidence that a denial of such training

would tend to affect her employment status or benefits.” Id.

2

Even though she had not been involved in the suit, her boss

also subsequently retaliated against her when, in response to

human resources asking her after the suit was filed if she had

ever experienced discrimination and mistreatment, she confirmed

that she had. After that conversation, her boss gave her “two negative performance evaluations” literally “the next day.” Id. at 402.

24

Emory Johnson suffered a similar fate. Mr.

Johnson’s employer subjected him to “a one and a half

year delay in receiving training for the newly-created

position of Smelter Operator,” Johnson v. Aluminum

Co. of America, 397 F.Supp.2d 688, 691 (M.D.N.C.

2005), aff ’d, 205 F. App’x 152 (4th Cir. 2006), even

though he already performed much of the involved

work. The training was not difficult to schedule because it was time-intensive; when they finally did give

him the training, it “ultimately took just three days.”

Id. The training mattered tremendously to him,

though, because for the intervening year and a half,

he “was not eligible for overtime work that would have

come with this position and therefore lost a number of

opportunities to earn overtime pay.” Id. Of course,

when he finally did get to work overtime, he was “given

extra, more difficult work during overtime shifts compared to white employees.” Id. at 691, 692. ALCOA also

ultimately denied Mr. Johnson a separate position that

should have been awarded to him based on seniority,

in favor of a “less senior, white employee.” Id. at 692.

Despite all of this, the District Court granted summary

judgment, and the Fourth Circuit affirmed, because it

did not believe that any of the foregoing “can be considered adverse employment actions.” Id. at 696. Underscoring how these atextual standards adopted by

the Courts of Appeals put federal courts in the position

of tacitly endorsing discrimination, the Court wrote

that “although Mr. Johnson claims that he was given

extra work during overtime assignments, he does not

explain how this extra work altered the ‘terms, conditions or benefits’ of his employment.” Id. It said the

25

same thing about the training because it “paid the

same hourly rate regardless,” simply ignoring the

question of access to more lucrative overtime. Id. at

697.

As with the reversed discipline and non-renewal

in Ms. Firestone’s case, courts also occasionally absolve

employers of denying workers training for discriminatory reasons if they later relent—including under duress. When Elias Pena worked for Clark County,

Washington, for example, his employer told him that

he would lose his position if he did not complete particular training—but also did not allow him to train on

County equipment. Pena v. Clark Cnty., 21-cv-5411,

2023 WL 3160157, *8 (W.D. Wash. Apr. 28, 2023). It also

initially refused to send him to outside trucking school

with the rest of his colleagues; it only did so when he

filed a grievance and prevailed with the assistance of

his union. Id. The record contained substantial evidence that it did this for straightforwardly discriminatory reasons; Mr. Pena’s boss told him and a Latino

colleague that “he admired Hitler and all the work he

did” and that he had previously “sabotage[d] Mexican

workers’ equipment” at past jobs, and another boss

told them that “he was building a border wall around”

his job site and kicking them out. Id. at *1, *2. The District Court, however, credited the County for ultimately facilitating his training, even though he had to

force it to do so; it held that he had “fail[ed] to present

conduct rising to an adverse employment action,” and

cited Ninth Circuit precedent for the proposition that

“a successful grievance could change the adverse

26

nature of an employment action.” Id. at *8 (citing

Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840,

848 (9th Cir. 2004)). Here, one effect of the adverse

employment action doctrine is that workers whose

training is delayed even for avowedly discriminatory

reasons, and who must seek outside assistance to rectify that wrong, have no recourse.

2. Evangelina Hemphill’s case also illustrates

how courts’ refusal to recognize the importance of

training for a worker’s job or career wrongly excludes

serious discrimination from Title VII’s textual coverage. Besides refusing to give a worker training that

could facilitate career advancement, an employer can

also decline to give someone necessary training to set

them up for failure in an existing job. After seven years

of good work, Ms. Hemphill’s employer switched her

bosses when she returned from maternity leave and

ultimately subjected her to a lateral transfer against

her wishes. Hemphill v. United Parcel Serv., Inc., 975

F.Supp.2d 548, 553-54 (D.S.C. 2013). But while that

transfer maintained her existing salary, it “was more

difficult than her previous position, required more

hours, and required training that she did not effectively receive.” Id. at 555. (Her employer also ultimately reassigned Ms. Hemphill again to a position

that “involved a longer commute” and a change in work

hours, id.—which posed other difficulties. See Section

I, supra.) The District Court viewed her bosses transferring her to a job for which she lacked training as

not an “adverse employment action.” Hemphill, 975

F.Supp.2d at 559. It did so despite acknowledging that

27

working more hours at the same pay might “effectively

amount[ ] to a decrease in compensation,” and did not

address the lack of training that she received for the

new position at all. Id. at 558.

IV. Discriminatory day-to-day working conditions impose real harms that fall within

the heartland of Title VII’s text.

Courts have also regularly dismissed claims or

granted summary judgment to employers when workers have alleged that their employers made them labor

in notably worse conditions than colleagues, solely on

the basis of race, gender, religion, or other statutorilyidentified characteristics. Especially for workplaces

where some similarly-qualified employees must work

hard physical jobs while others work at desks, or where

some people may work outside in the elements while

others work inside, discrimination in conditions to

which employers subject workers can have a substantial effect on the conditions of someone’s employment.

The stories of the workers involved in these failed

cases underscore why this Court should restore Title

VII’s textual protections to cover these situations.

1. Some employers go out of their way to make

the conditions of someone’s job intolerable, yet courts

reject the possibility of liability under the prevailing

atextual interpretations of Title VII. Carlos Vega’s

school district employer attempted to make it as

hard as possible for him to teach math—it forced him

to “teach in an ‘excessively noisy’ media center,” deactivated his password to make him unable to access

28

school computers, and “twice unsuccessfully attempted

to transfer him out of the High School.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 89 (2d Cir.

2015). But because the Second Circuit viewed these as

“mere inconveniences or annoyances” rather than his

employer having “alter[ed] Vega’s employment in a

materially adverse way,” the Court applied its atextual, heightened standard to hold that those allegations did not plausibly state a claim under Title VII.

Id.

Emetria Wheeler’s railroad employer similarly

tried to make her job intolerable. It treated her differently than male coworkers by refusing to give her

“keys to the facility or keys to her personal locker,” and

refusing to assign her a vehicle to use. Wheeler v. BNSF

Ry. Co., 418 F. App’x 738, 743 (10th Cir. 2011). Her boss

refused to give her work assignments directly, sharing

them with a male colleague of hers and making that

man relay them to her; he also assigned her work “with

unusually short time requirements” to try to cause her

to fail. Id. The Tenth Circuit affirmed summary judgment, holding that none of those things constituted

“adverse employment action.” Id. at 745.

Some employers make workers’ lives intolerable

in other ways. Karen Morgan’s male bosses “screamed

at her” regularly, “stood outside the restroom with his

arms crossed” when one perceived her as taking too

long there, “would give her dirty looks,” and would

admonish her “for leaving her work area without permission, while male employees left for extended periods but were not questioned.” Morgan v. Triumph

29

Aerostructures, LLC, 296 F.Supp.3d 911, 916, 918 (M.D.

Tenn. 2017). One male colleague in particular “would

stand behind [her]” while she worked, “go[ ] on her

calls,” and “scream[ ] obscenities at her across the

hangar,” and “was trying to find a way to get her terminated.” Id. at 918-19. Despite the intolerable conditions of her job, the District Court granted summary

judgment to her employer because “[m]onitoring bathroom breaks is not an adverse employment action,”

and “increased surveillance and discipline, whether

warranted or not, do not constitute a material adverse

change in the terms of employment.” Id. at 922.

Companies also discriminate by assigning more or

worse work to some people than to similarly-situated

coworkers for unlawful reasons. Compass Group USA,

for example, assigned Ora Ellis “a heavier workload

than other employees” on the basis of her race. Ellis v.

Compass Group USA, Inc., 426 F. App’x 292, 295 (5th

Cir. 2011). Even though her underlying health forced

her to “[take] a voluntary medical leave of absence,” id.

at 294, Compass Group gave her no quarter, and actively “refus[ed] to provide workers to help with her

workload.” Id. at 296. The Fifth Circuit, however,

treated this as non-actionable because she “cannot satisfy” the “adverse employment action” requirement. Id.

2. Some discrimination in physical working conditions, however, hearkens back to the ugliest period of

American history. Let’s return to Mr. Peterson, initially

described in Section I, supra, because his employer

denied him leave for discriminatory reasons. See Section I, supra at 12. Worse even than its discriminatory

30

scheduling decisions, however: Linear Controls straightforwardly discriminated against Peterson and other

Black employees in the nature of the work it assigned

them. Peterson “was on a team of five white employees

and five black employees, and the 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.” Peterson, 757

F. App’x at 372. For Peterson, but not the white employees, managers would also “judge his appearance and

overlook his work.” Id. As noted before, the Fifth Circuit affirmed the dismissal of his complaint for failure

to allege “an adverse employment action.” Id. at 373.

Assigning Black workers to labor in the elements

while allowing their white colleagues to work in comfort indoors is exactly the sort of discrimination Title

VII intended to combat. And Peterson is hardly alone.

Billy Stewart, a high school security officer, faced exactly that type of discrimination at his job. Despite an

“unblemished” record while supervised by his school’s

assistant principal, when the School Board hired a new

district-wide supervisor of security officers who harbored racial animus, Stewart, who is Black, was “assigned to work outside during the winter when

conditions were unbearable” while colleagues were not.

Stewart v. Union Cnty. Bd. of Educ., 655 F. App’x 151,

152 (3d Cir. 2016).3 Ugorji Ugorji, an administrative

3

His new boss antagonized him in other ways that affected

the conditions of his job, too: he was transferred to work at a “less

prestigious” school, “questioned regarding receiving free items

from the Athletic Department” while other coaches were not, and

31

assistant, had a boss who “assigned him to an office

that was noisy, moldy, and without windows,” which his

boss forced him to stay in for more than two years until

he eventually “presented a doctor’s note about the effects of the interior office on his health.” Ugorji v. N.J.

Envtl. Infrastructure Trust, 529 F. App’x 145, 148 (3d

Cir. 2013). His boss also forced Ugorji to “reorganize

his office furniture” and “confiscate[ed] a space heater

from Ugorji’s office,” among other discriminatory actions that his supervisors took. But the Third Circuit

affirmed summary judgment in both Stewart’s and

Ugorji’s cases because neither had met that Circuit’s

atextual and heightened standard. For Stewart, despite the clearly alleged racial animus, “he had not suffered an actionable adverse action,” Stewart, 655 F.

App’x at 156, which in that Circuit’s view included only

“a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision

causing a significant change in benefits.” Id. Similarly,

for Ugorji, the Court explained that he had not suffered “an adverse employment action” because there

had been no “significant change in employment status.” Ugorji, 529 F. App’x at 151 n.4.

***

As these cases demonstrate, the effect of numerous Circuits’ atextual interpretation of Title VII is

that millions of workers face odious workplace

“not permitted to leave early to coach track and football” while

other coaches were. Id. at 152-53.

32

discrimination with no legal remedy. Courts’ imposition of heightened requirements, however phrased, has

insulated employers who specifically intend to discriminate, and make life untenable for their employees. If

they do that well enough, an employee will quit instead

of the employer even having to subject them to the “ultimate employment action” that would meet most federal courts’ heightened standard. The evolution of the

doctrine has caused substantial harm to workers by

suborning discrimination. Current doctrine is untethered to the text of the statute. This Court should restore Title VII to the boundaries of its plain text and

ensure that workers have Congress’s designed remedy

when they face intentional discrimination in the workplace.

---------------------------------♦---------------------------------

CONCLUSION

The decision of the Eighth Circuit should be reversed.

Respectfully submitted,

JIM DAVY

Counsel of Record

ALL RISE TRIAL & APPELLATE

P.O. Box 15216

Philadelphia, PA 19125

(215) 792-3579

jimdavy@allriselaw.org

Sept. 1, 2023