[00:00:00] Speaker 00:
Case number 19-1798, Mary E. Chambers, Appellant, versus District of Columbia.

[00:00:06] Speaker 00:
Mr. Wolfman for the Appellant Chambers, Ms.

[00:00:08] Speaker 00:
Baldwin, amicus curiae, United States, Ms.

[00:00:11] Speaker 00:
Van Zyl for the Appellee District of Columbia, Mr. Schaaf, appointed amicus curiae.

[00:00:16] Speaker 09:
Good morning, counsel.

[00:00:19] Speaker 09:
Mr. Wolfman, please proceed when you're ready.

[00:00:23] Speaker 11:
Thank you, your honor.

[00:00:25] Speaker 11:
May it please the court

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A discriminatory lateral transfer or a refusal of transfer violates Title VII.

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Any differential treatment in a term, condition, or privilege of employment is prohibited.

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And importantly, a term, condition, or privilege of employment is a workplace requirement benefit that an employer imposes on, grants to, or withholds from an employee.

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The when, the where, the what of one's job is a term or condition of that job.

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As the United States has put it, the job itself must be a term or condition of employment.

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So that after Mary Chambers was denied her transfer, she could not have shown up the next day and performed the job as she desired, precisely because contrary terms and conditions have been set by her employer.

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That's what the statute says.

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the court should enforce what the statute says and means in reverse.

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Now the labor law origins of section 703A1 simply underscore this conclusion because the NLRA's use of terms and conditions of employment have been understood as capacious

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of the employer-employee relationship.

[00:01:44] Speaker 05:
Dr. Hoffman, can I just ask a background question?

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I know it was mentioned in the briefing that Ms.

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Chambers has now been transferred to a low stress or lower stress position.

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I just wanted to clarify or confirm that or understand, does she still want this transfer if she could get it or what is the nature of her interest in continuing interest in this transfer claim?

[00:02:10] Speaker 11:
I believe that I'm not certain your honor, but I believe her interest in this claim is, is, is largely if not entirely retrospective I don't know her position of whether she wants in statement into this job at this point.

[00:02:24] Speaker 05:
So she doesn't want the transfer.

[00:02:26] Speaker 05:
She no longer.

[00:02:27] Speaker 05:
As far as you understand at this point she no longer wants the transfer that issue in this case.

[00:02:34] Speaker 11:
I don't know the answer to that question.

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I know that she seeks retrospective remedies, but I don't know whether she is seeking in statement at this time.

[00:02:43] Speaker 05:
What retrospective remedy is she seeking?

[00:02:46] Speaker 11:
It would be the non pecuniary remedies that are permitted by the 1991 act.

[00:02:51] Speaker 11:
Right, so it would be no injunction.

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So what would it be?

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It would be the non pecuniary remedies permitted by the 1991 act.

[00:03:01] Speaker 05:
Can you be more specific?

[00:03:03] Speaker 11:
Humiliation,

[00:03:06] Speaker 05:
So it's damages.

[00:03:07] Speaker 11:
Yes, damage is all entirely damage.

[00:03:09] Speaker 11:
Okay.

[00:03:10] Speaker 11:
And, but I do not know the answer to your question at this point, because I do not.

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Are you thinking specifically of changes to her personnel record?

[00:03:22] Speaker 11:
Yes, I mean, it certainly could change her personnel record to indicate that she was entitled to this transfer and was denied it on the basis of discrimination.

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That is yet to be proved on remand, and we intend to try to prove that on remand.

[00:03:38] Speaker 16:
Mr. Wolfman, if we rule as you were asking us to, wouldn't we be putting ourselves in conflict with most, if not all, of the other circuits?

[00:03:47] Speaker 11:
you would be putting yourself in conflict with some of the circuits.

[00:03:50] Speaker 11:
I think not with respect to two circuits.

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So for instance, the recent decision of the sixth circuit in the three case is about the when of employment.

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And I think the necessary consequence of that decision is that the what of employment, what your job is, is also a term or condition of privilege of employment.

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I think to the ninth circuits,

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view on this topic is what it calls the so-called EEOC position.

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And the EEOC position has been for many years that job assignments are terms, conditions, and privileges of employment.

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But I do believe that, for instance, it would put this circuit in conflict with the Fifth and the Third Circuit, most notably.

[00:04:35] Speaker 16:
What's the exact standard that you are urging us to accept?

[00:04:40] Speaker 11:
So if I might.

[00:04:41] Speaker 11:
And some of this is what I've already said, Your Honor, but let me repeat it.

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A term, condition, or privilege of employment is a workplace requirement or benefit that an employer imposes on grants to or withholds from an employee so that at the very least, the when, where, and what of one's job is a term or condition of that job.

[00:05:01] Speaker 11:
Let me add one other thing that I did not say, Judge Miller, which is at the very least, this court should also go ahead and eliminate the distinction this court has drawn since Brown

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between objective and subjective interests of the employee, because those are not trained on by 703A1.

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703A1 asks three questions, and they are all concerning the employer's conduct.

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It asks whether the employer has discriminated, whether it has done so with respect to the five protected characteristics, and whether it has done so with respect to a term, condition, or privilege.

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So can I ask a question?

[00:05:43] Speaker 09:
Go ahead.

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So it asks whether the employer has discriminated against.

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not just whether the employer is discriminated, and I'm not sure there's a difference, but I just want to hear your take on the word against, because the statute speaks in terms of discriminating against, and what work is the word against doing under your conception of the case?

[00:06:03] Speaker 11:
Under our conception of the case, the word against ensures that the plaintiff has suffered an injury, and in our view, that's an injury in the Article III sense, so that the

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discrimination against an individual is by definition a harm.

[00:06:27] Speaker 09:
So do you think that there is there such a thing as discriminating in favor?

[00:06:35] Speaker 11:
Yes, I believe there could be, often discrimination is favoring one person and disfavoring another.

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So the answer to that would be yes.

[00:06:44] Speaker 09:
So if you had a case in which, say like Johnson versus transportation agency, a case that involves a policy that favors some people who by category that singled out under Title VII, if a person who's viewed to be favored brings a claim,

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saying that this can be viewed as favoring me, but I don't want it.

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Would that person have been discriminated against so as to bring an actionable claim under Title VII?

[00:07:17] Speaker 11:
I think the answer to this is possibly less, but let me answer it this way to begin with, which is that that is going to the question of what discrimination means, not the question of what a term, condition, or privilege means.

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means, which I think that's the principal question before this court today.

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There are problems on the margins in deciding what is discrimination, and that is a marginal case.

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The court appointed Dominguez, for instance, brought up the very narrow area of affirmative action.

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where there are difficult considerations, as you say, between who is being discriminated against and who is being favored.

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But to go back to your question, I think, yes, I think a person could say they are stigmatized by the very fact that employment discrimination has been made with respect to them on the basis of one of the prohibited characteristics.

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Let me just add that's a close question, and it is very far from the meat and potatoes of this adverse employment action doctrine that is built up in the wake of Brown.

[00:08:28] Speaker 09:
So your view is that whenever there's a lateral transfer from one position to another, that a person who either is denied a transfer that they would like or is forced to accept a transfer they would dislike has stated an actionable claim because by definition, the denial of a lateral transfer or the forced acceptance of a lateral transfer is discrimination against.

[00:08:50] Speaker 11:
Yes, and then let me just add, not only yes but the question of the transfer goes to what a person does what their job is at their employer, it's within the heartland of terms conditions.

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I want to point out that our position is consistent with the EEOC's views, long-standing EEOC views, both in its policymaking and adjudicatory capacities.

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The agency has given terms, conditions, and privileges a quite wide berth, consistent with the ordinary meaning of those terms.

[00:09:29] Speaker 12:
Mr. Wolfman, I want to follow up the chief judge's question.

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Keep his question.

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in mind and tell us how your view of the standard would apply to the store clerk hypothetical in the court appointed annexes brief.

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A supervisor tells a salesperson to work the sporting goods section for an afternoon instead of the power tool section.

[00:09:59] Speaker 11:
I think that would be a term condition of privilege of employment.

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And the question would be whether that transfer modest as it may be,

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was motivated by discrimination.

[00:10:10] Speaker 11:
I don't think job assignments, you know, this is, dovetails very well with the EOC guidance I was just talking about.

[00:10:18] Speaker 11:
Job assignments are terms, conditions, and privileges for employment.

[00:10:21] Speaker 11:
I appreciate that that is not within the heartland of Title VII.

[00:10:26] Speaker 11:
You know, modest assignments in the course of a day are not gonna lead to lawsuits, generally speaking, but if you ask me

[00:10:40] Speaker 11:
of employment.

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And the question, and with all respect, this was the point I think you were making at the end of your dissent in the Douglas case, Judge Tatel, is that we shouldn't conflate terms, condition, and privileges with discrimination.

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And the question in that case is, was it discriminatory?

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Something that modest is unlikely

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to be motivated by discriminatory intent.

[00:11:08] Speaker 07:
Mr. Wolfman, just to follow up on that questioning, what if the employee requested everyone was in offices?

[00:11:19] Speaker 07:
Your reply brief talks about if women were assigned to cubicles, but men were assigned to private offices.

[00:11:28] Speaker 07:
But what if the situation were that

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A female employee requested the coroner office when it became available, but it was not given to her.

[00:11:42] Speaker 07:
It was given to a male employee.

[00:11:45] Speaker 07:
Is that a term, condition, or privilege of employment?

[00:11:50] Speaker 11:
I think yes, Your Honor.

[00:11:51] Speaker 11:
Yes, Judge Wilkins.

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I mean, that's the kind of perks that are frequently, to use the term of the statute, privileges of employment.

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And we know from common experience

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that those things are valued in the workplace, they relate to prestige, and they are clearly terms, conditions, and I would say principally in that, in your hypothetical, a privilege of employment.

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And the point being that cannot be made, that decision cannot be made on the basis of one of the prohibited characteristics.

[00:12:26] Speaker 16:
Is the job, lateral transfer, is the job definition doing any work?

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In other words, if an employer defines the job to include employer prerogative to shift people around in certain ways, trade offices, shift around tasks, you're gonna be front of the house, and if we need you, back at the house, and if we need you, busing tables, and that's gonna be your job, does that

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have any impact at all on how we do the analysis?

[00:12:59] Speaker 16:
Or is someone going to be able to say, well, it's a de facto lateral transfer that I was moved from the front of the house to the back of the house.

[00:13:05] Speaker 16:
And in fact, I see a pattern of the minority employees being moved.

[00:13:09] Speaker 11:
Right.

[00:13:10] Speaker 11:
So the answer to your question is no.

[00:13:12] Speaker 11:
I want to explain why and give an example.

[00:13:16] Speaker 11:
The answer is no, because

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If that is motivated by discrimination, it is actionable under Title VII.

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And the reason is that you are describing, Judge Pillard, the ordinary incidence of at-will employment.

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And the court appointed in me makes a point of this.

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Of course, jobs often allow for the moving around of employees during the day or during a week or as part of that person's job description.

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And Title VII doesn't seek to alter those kind of at-will

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employment prerogatives except if the decision is made on the basis of an improper motive with respect to those five characteristics.

[00:14:00] Speaker 11:
Let me give an example.

[00:14:01] Speaker 11:
I think it helps make the point because you mentioned front of house, back of house.

[00:14:06] Speaker 11:
Let's take the example from EEOC versus a Abercrombie and Fitch.

[00:14:11] Speaker 11:
That's the headscarf case, religious discrimination matter.

[00:14:16] Speaker 11:
Let's assume for a second they accommodate

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the employee, and she's permitted to wear a headscarf.

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And she is a front of the house greeter at Abercrombie and Fitch, but the employer believes that the customer preference is inconsistent with that, and they move her to the dressing room, so she's not seen as frequently by the customers who the employer perceives would be offended.

[00:14:43] Speaker 11:
And that is plain discrimination.

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It's highly stigmatic and it could undermine the ability of this individual to progress in her career.

[00:14:56] Speaker 11:
And I think that's your question.

[00:14:58] Speaker 11:
The answer is that's impermissible.

[00:15:02] Speaker 05:
Can I ask a question?

[00:15:03] Speaker 05:
Go ahead.

[00:15:05] Speaker 07:
When you mentioned that it is stigmatic in the answer to that last question, are you suggesting that actions have to be stigmatic to be actionable or for there to be an Article III injury?

[00:15:23] Speaker 07:
What is the role of stigma in this analysis?

[00:15:29] Speaker 11:
The employer's subjective feelings, as I said, are irrelevant.

[00:15:34] Speaker 11:
So you don't need stigma.

[00:15:36] Speaker 11:
My point made here and principally earlier was that stigma is enough to meet Article III's injury requirement.

[00:15:46] Speaker 11:
In the heartland of cases that we're talking about, what job you're doing, whether as in the cases referring to earlier, the Douglas case, whether someone is recommended for a lucrative job award,

[00:15:59] Speaker 11:
All of those things are well beyond stigma.

[00:16:02] Speaker 11:
My only point about reference to stigma is that in the Hypochromia and Fitch hypothetical, there's at least stigma, and then some.

[00:16:12] Speaker 11:
And it's exactly the kind of stigmatic injury that this statute is meant to eradicate.

[00:16:20] Speaker 16:
I'm not sure you entirely got a chance to finish your answer.

[00:16:23] Speaker 16:
You started to make a point about how we should eliminate the distinction between the objective and subjective effect on employees.

[00:16:30] Speaker 16:
And I wasn't sure where you were getting that from.

[00:16:33] Speaker 16:
And you said the statute is trained on the employer.

[00:16:36] Speaker 16:
So what about a highly subjective, particular feeling of harm or burden or grievance by an employee that's actionable?

[00:16:46] Speaker 16:
And tell us how you get there.

[00:16:49] Speaker 11:
Let me give an example that would not cut the mustard under brown.

[00:16:57] Speaker 11:
Someone just applies for a job in the first instance, and they want the job for entirely subjective reasons.

[00:17:05] Speaker 11:
They think they would enjoy the job.

[00:17:08] Speaker 11:
Many other people in society, most people in society, would disagree that it's a good job.

[00:17:15] Speaker 11:
We know for a fact that if that person is denied the job on the basis of one of the five protected characteristics, it is impermissible under Title VII.

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And a lateral transfer is simply the functional equivalent

[00:17:31] Speaker 11:
within the work relationship after hiring of the hiring.

[00:17:37] Speaker 09:
Can I just ask a follow up on that?

[00:17:38] Speaker 09:
So suppose that the jobs are differentiated by the day of the week.

[00:17:42] Speaker 09:
So one job, it's the same job in description, but one's on Monday position and one's a Tuesday position.

[00:17:49] Speaker 09:
And the plaintiff brings a claim and doesn't articulate a particular reason that one day is preferable to the other day.

[00:17:58] Speaker 09:
And does the does the plaintiff under your conception of the case have to do that, or is it enough to say that they wanted to.

[00:18:05] Speaker 09:
They wanted to have the Tuesday job, instead of the Monday one or conversely, they were forced to accept the Tuesday job, instead of keeping the Monday one, whichever way you want to look at it.

[00:18:13] Speaker 11:
The answer to that.

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Your honor is that states a claim as determined conditioner privilege.

[00:18:22] Speaker 11:
combination if you didn't go further.

[00:18:24] Speaker 11:
And let me just say, this is not that different what is going on in the three situation that case recent case out of the Sixth Circuit.

[00:18:32] Speaker 11:
That's about shifts.

[00:18:35] Speaker 11:
Some people might prefer night shift.

[00:18:37] Speaker 11:
Some people might prefer day shift.

[00:18:40] Speaker 11:
In real life, the person is gonna prefer Tuesdays because of say daycare responsibilities.

[00:18:46] Speaker 09:
Right, so in the three case, for example, it was at least I think somewhat evident why there was a preference for one shift over the other and all someone had to do was to say it.

[00:18:56] Speaker 09:
And I guess the question is, do you think someone has to say that at all or is it just this, that's just not part of the equation?

[00:19:02] Speaker 11:
that is not a part of the equation and asking whether something is a term condition or privilege of employment.

[00:19:07] Speaker 16:
And if the employer says, I have two employees, john has small children and wants to be home wants to know that he can be home on Monday evenings because his partner is working.

[00:19:20] Speaker 16:
And Daniel doesn't have small children and doesn't care when he's home.

[00:19:26] Speaker 16:
So I'm going to put

[00:19:27] Speaker 16:
John on Monday and Daniel on Tuesday, and well, actually, John on Monday and Margaret on Tuesday, can Margaret bring a sex discrimination claim saying, I've been discriminated against because I am a woman.

[00:19:41] Speaker 16:
And I guess I'm giving a bad example because it's not linked to sex.

[00:19:45] Speaker 16:
But how about the mom is being given the Monday evening because she's a mom and the employer says, I want to accommodate you being home.

[00:19:54] Speaker 16:
And John doesn't care.

[00:19:58] Speaker 11:
The answer is yes, the claim is actionable as to terms, conditions, or privileges.

[00:20:05] Speaker 11:
Again, some of these hypos indicate that these would be difficult to prove as a matter of whether discrimination has occurred, whether it's as to a protected characteristic.

[00:20:16] Speaker 11:
Again, I want to be careful here, but again, this is the point I believe that Judge Tata was making at the end of his dissent

[00:20:27] Speaker 11:
In the Douglas case, that's the case about job awards, we shouldn't be looking at terms, conditions and privileges in this subjective, objective way.

[00:20:39] Speaker 11:
The ultimate question is whether there's discrimination and we should not conflate it here.

[00:20:43] Speaker 10:
Mr. Wolfman, to go back to the Sixth Circuit case, thread, reach, whatever, however it's pronounced, seems there that the court actually implies pretty strongly that the transfer, the shift change in that case would not have been actionable

[00:21:11] Speaker 10:
but for the effect on the employee's seniority?

[00:21:19] Speaker 11:
I respectfully disagree with respect to one of the employees who actually had his shift changed, where it is pretty clear that that person is going to have an actionable claim.

[00:21:38] Speaker 11:
And in fact, that claim

[00:21:40] Speaker 11:
has been viewed on remand in the district court as going to the jury solely on the question of damages.

[00:21:48] Speaker 11:
As to the other employees, and I think this is what you're getting at Judge Ginsburg, the court remanded, and some of those employees simply said that they want the ability to be in the presence of other black employees.

[00:22:03] Speaker 11:
And so something as relatively minor as those associational interests,

[00:22:08] Speaker 11:
I might be honored on remand.

[00:22:11] Speaker 10:
I'll take you back to the text.

[00:22:12] Speaker 10:
Here's the holding with regard to the lead plaintiff.

[00:22:16] Speaker 10:
When an employee's race is a basis for a shift change that denies the privileges of the employee's seniority, the employer has discriminated on the basis of race.

[00:22:24] Speaker 10:
Then going on to the other employees, the city did not alter the shifts of the other claimants.

[00:22:30] Speaker 10:
They brought claims for

[00:22:31] Speaker 10:
discrimination on the ground that the city's race-based assignment bonds affected their bidding schedule, controlled when and with whom they worked, as you just said, reduced the benefits of seniority and diminished their supervisory responsibility.

[00:22:44] Speaker 10:
So in other words, none of these was just a naked claim of a transfer or shift change.

[00:22:50] Speaker 10:
They all invoked something which I think fully, I mean, it clearly comes within your point about

[00:22:58] Speaker 10:
about terms, conditions, and privileges of employment.

[00:23:03] Speaker 11:
That is correct.

[00:23:05] Speaker 10:
But it is not a case of the Sixth Circuit simply saying anything goes.

[00:23:09] Speaker 10:
It doesn't matter if all you've got is a naked shift change.

[00:23:13] Speaker 11:
That is correct.

[00:23:14] Speaker 11:
And the reason for that, Your Honor, is that number one, the court was sitting as a panel.

[00:23:19] Speaker 11:
It had precedent similar to the precedent of Brown.

[00:23:26] Speaker 11:
circumstances of the particular plaintiffs there were such that no further argument had to be made.

[00:23:32] Speaker 11:
In other words, the plaintiffs in that case didn't need to make the argument that stigma alone was sufficient.

[00:23:39] Speaker 11:
So I think in that respect, Your Honor, Threed is just silent on that question.

[00:23:44] Speaker 10:
I don't see why stigma has entered into this discussion, frankly.

[00:23:47] Speaker 10:
I think you mentioned it sort of offhandedly, and it's a distraction because the case either states or does not state a complaint without regard to stigma.

[00:23:58] Speaker 11:
I think that's right.

[00:23:59] Speaker 11:
I was trying to respond to some of the hypotheticals that I believe are not really at the heartland to decide this case.

[00:24:08] Speaker 11:
And this goes to the questions I was getting from Judge Pillard.

[00:24:11] Speaker 11:
I think what the court needs to do is say

[00:24:14] Speaker 11:
term privilege and term condition and privilege is?

[00:24:20] Speaker 10:
No, we don't.

[00:24:21] Speaker 10:
All we have to say is that this is one.

[00:24:23] Speaker 11:
You could do that.

[00:24:24] Speaker 11:
You could do that.

[00:24:25] Speaker 11:
I would be and it's not my job to decide how far you should go.

[00:24:29] Speaker 11:
But I think it would be important to say that not simply that lateral transfers are actionable, but other things that in the wake of Brown have not been actionable, such as

[00:24:43] Speaker 11:
an employer's policy not to recommend someone for an award on the basis of race, a lucrative award.

[00:24:53] Speaker 11:
What about shift changes?

[00:24:54] Speaker 11:
That's in three.

[00:24:55] Speaker 11:
So I think the court should give some guidance as to the other cases, but that is obviously not my call.

[00:25:03] Speaker 12:
Mr. Wolfman, why do those cases need any other guidance based on your theory of this case?

[00:25:08] Speaker 12:
I mean, your theory is that

[00:25:10] Speaker 12:
the denial of a lateral transfer on the basis of race is actionable, period, right?

[00:25:15] Speaker 12:
That is right.

[00:25:16] Speaker 12:
So why would we need any guidance for any of those other cases?

[00:25:21] Speaker 12:
The standard you articulate or wish to articulate, wish us to articulate, would apply to all of those cases, wouldn't it?

[00:25:31] Speaker 11:
That is correct.

[00:25:32] Speaker 11:
So the standard, that is right.

[00:25:33] Speaker 11:
The standard that I articulated to Judge Pillard is plenty capacious to cover all those cases.

[00:25:40] Speaker 12:
That's not a question of capaciousness.

[00:25:42] Speaker 12:
It's the question of your simple definition of what is discrimination against, right?

[00:25:49] Speaker 11:
That is correct.

[00:25:50] Speaker 12:
And also our... You're beginning to make this more complicated than I thought it was when I came into this.

[00:26:00] Speaker 12:
Am I right?

[00:26:01] Speaker 12:
That's your position.

[00:26:04] Speaker 12:
Your position is that the denial

[00:26:08] Speaker 12:
Of a transfer on the basis of race or sex is discrimination against that person now that person may or may not lean on the merits, but that is an actionable.

[00:26:21] Speaker 12:
action, correct?

[00:26:23] Speaker 10:
That is correct.

[00:26:23] Speaker 10:
I think I think something more is involved.

[00:26:25] Speaker 10:
I think it's we have to say that it's actionable because that is a term condition or privilege of employment.

[00:26:32] Speaker 11:
That's right.

[00:26:33] Speaker 10:
That's exactly right.

[00:26:36] Speaker 10:
And if we say that, then it's a strong implication that anything that is infringes a term condition or privilege of employment is actionable.

[00:26:45] Speaker 10:
That's right, Your Honor.

[00:26:47] Speaker 10:
So let me slow me down.

[00:26:48] Speaker 10:
I'm fine with that.

[00:26:49] Speaker 10:
But that is the implication.

[00:26:51] Speaker 11:
That is correct.

[00:26:52] Speaker 11:
So let me repeat, Your Honor, if I might, that a term, condition, or privilege is a workplace requirement or benefit that an employer imposes on grants to or withholds from an employee.

[00:27:04] Speaker 05:
Can I follow up?

[00:27:05] Speaker 05:
I just, to the extent, follow up here, if our decision were about transfers on the ground that they're embodied or have impacts on terms, conditions, or privileges of employment,

[00:27:22] Speaker 05:
what counts as a transfer.

[00:27:25] Speaker 05:
And in particular, going to the store hypothetical, where you work, which section of the store you work within.

[00:27:35] Speaker 05:
If the job is described as you are a floor salesperson and everybody rotates through different departments constantly.

[00:27:43] Speaker 05:
So sometimes you're in sporting goods, sometimes you're in power tools, sometimes you're in home goods, sometimes you are in pharmacy.

[00:27:53] Speaker 05:
And if what the employer said is, this morning, I need you to be in sporting goods.

[00:28:04] Speaker 05:
And the employee said, and in the afternoon, you'll go over to Power Tools.

[00:28:07] Speaker 05:
And the employee said, no, I want to be in Power Tools all day.

[00:28:15] Speaker 05:
Is the decision to put her into sporting goods in the morning?

[00:28:20] Speaker 05:
You may have an argument about whether it affects terms, conditions, or employment.

[00:28:23] Speaker 05:
I just want to know, does that location decision for the morning constitute denial of a transfer?

[00:28:33] Speaker 11:
This goes to what the word transfer means.

[00:28:35] Speaker 11:
I think that probably is a denial of transfer.

[00:28:38] Speaker 11:
One could think it, but even if it's not Judge Ballett, it's a job assignment.

[00:28:43] Speaker 05:
And so- I understand your argument on that front.

[00:28:47] Speaker 05:
But does a transfer, so transfer is even different locations when your job description is work anywhere, even for an hour.

[00:28:57] Speaker 05:
Can you run over and handle register two for me, please?

[00:29:01] Speaker 05:
We've got a long line.

[00:29:03] Speaker 05:
So leave the sporting goods.

[00:29:04] Speaker 05:
We need another cashier right now because we're really busy.

[00:29:09] Speaker 05:
That also would fall within your definition of transfer?

[00:29:13] Speaker 11:
That's a difficult question.

[00:29:14] Speaker 11:
So let me answer it this way.

[00:29:15] Speaker 05:
That's why I asked.

[00:29:16] Speaker 11:
No, I understand.

[00:29:18] Speaker 11:
But the answer is my answer would be yes.

[00:29:20] Speaker 11:
But let me I want to extend my answer because ultimately I don't think the answer with all respect matters because there are a number of categories

[00:29:31] Speaker 11:
that have fallen under the general principle of adverse employment action in this adverse employment action doctrine.

[00:29:37] Speaker 11:
Some of them are referred to as demotion, some of them are referred to as transfers, some of them are referred to as job assignments.

[00:29:43] Speaker 11:
I think job assignments is more of the umbrella term, and that's the term used in EEOC guidance, and that would be a job assignment, what you're talking about.

[00:29:53] Speaker 11:
And it's a very minor one.

[00:29:55] Speaker 05:
The transfers are a subset, so not all job assignments are transfers.

[00:30:00] Speaker 05:
I just want to know because if, as Judge Tatel and Judge Ginsburg were talking about and as a brief talk about having a categorical rule that transfers always impact terms, conditions, and privileges of employment.

[00:30:14] Speaker 05:
I just want to have some sense of what counts as transfers and is it the same as job assignments or is it smaller?

[00:30:22] Speaker 05:
If it's smaller, what's the difference?

[00:30:27] Speaker 11:
I guess my answer is it's not smaller.

[00:30:30] Speaker 11:
It's a different way of describing the same problem, which is you can't assign someone to a job, whether it's for a week, a month, short period, a long period on the basis of one of the five prohibited characteristics.

[00:30:47] Speaker 10:
Go ahead.

[00:30:49] Speaker 10:
The situation that Judge Millett described is one in which the employer has given the frontline supervisor discretion on assignments, but cannot give that person discretion to assign on the basis of race.

[00:31:05] Speaker 10:
This all comes out of experience with these terms in the NLRA.

[00:31:12] Speaker 10:
And if I say, I want to put the union adherent over here, so he has fewer contacts with other employees,

[00:31:20] Speaker 10:
That's a prohibitive reason for an assignment.

[00:31:22] Speaker 10:
It doesn't matter whether it's for a day or for a permanent job.

[00:31:25] Speaker 11:
That's exactly right, Judge Ginsburg.

[00:31:27] Speaker 11:
And this court held in microimage digital, which is cited in our reply brief, that a one-day transfer without pay was a term or condition of employment within the meaning of Section 883 of the NLRN.

[00:31:44] Speaker 05:
There's no technical depth, no specialized definition of transfer.

[00:31:49] Speaker 05:
What we would decide under your rule for categorical treatment of transfers is any job assignment, no matter how temporary or brief, no matter how the job is described, as long as there's a change in location.

[00:32:06] Speaker 11:
That's right, because I think in the terms used by the statute,

[00:32:12] Speaker 11:
there is no distinction because the statute refers to terms, conditions, or privileges, and all the things that you've mentioned, Judge Millett, however minor some of them may be, are still terms, conditions, or privileges of employment.

[00:32:25] Speaker 11:
And as Judge Gingrich just said, the employer is free to do all those things in the absence of discrimination.

[00:32:33] Speaker 12:
Mr. Wolf, another way to put that, would it be fair to say that your position is that

[00:32:40] Speaker 12:
Yes, employers have a lot of discretion, but under no circumstances, at any level, can an employer make a decision regarding an employee based on race.

[00:32:51] Speaker 12:
That's your point.

[00:32:52] Speaker 11:
That is the point I was making.

[00:32:53] Speaker 12:
Whatever is happening in the workforce, whether it's a transfer or whether it's a supervisor with discretion to move people around,

[00:33:02] Speaker 12:
What we know is that in the workplace, this is Title VII of the Civil Rights Act, right?

[00:33:07] Speaker 12:
In the workplace, employers may not make decisions based on race, period.

[00:33:13] Speaker 11:
Correct?

[00:33:14] Speaker 11:
That is correct.

[00:33:14] Speaker 11:
That is our position.

[00:33:17] Speaker 05:
That's the broader rule.

[00:33:19] Speaker 05:
I keep getting confused whether we're talking about your broad rule.

[00:33:22] Speaker 05:
And it's not to say that something might not be actionable.

[00:33:26] Speaker 05:
I'm just trying to figure out what's actionable within the framework.

[00:33:29] Speaker 12:
Mr. Wolfman, did I state it more broadly than you have?

[00:33:32] Speaker 11:
That is the way that we have stated in our briefs.

[00:33:36] Speaker 11:
That is the way I stated in my opening this morning, that is our position.

[00:33:41] Speaker 11:
And the other point I was making is simply that the circumstances here are within the heartland of the provision.

[00:33:47] Speaker 11:
This is the job itself.

[00:33:49] Speaker 10:
Mr. Wilkman, just go back a second.

[00:33:51] Speaker 10:
There may be things an employer does that do not, and does on the basis of race, that do not constitute a term, condition, or privilege of employment.

[00:34:02] Speaker 10:
They're going to be narrow and inconsequential.

[00:34:06] Speaker 10:
If that frontline supervisor always has lunch with the whites and not the blacks, probably not.

[00:34:16] Speaker 11:
The question, there are some things, this goes back to the original statement I made at the beginning of this argument.

[00:34:24] Speaker 11:
A term condition or privilege is something that an employer imposes on grants to or withholds from an employee.

[00:34:32] Speaker 11:
So your example may not be something that is imposed on granted to or withheld by an employee.

[00:34:38] Speaker 11:
And your example may be a situation where it's hard to ascribe that conduct to the employer.

[00:34:45] Speaker 11:
You generally do not have problems of ascribing liability to the employer when an employer has taken discrete action.

[00:34:54] Speaker 11:
And notably, all the cases in this court's adverse employment action doctrine flowing from Brown are discrete actions in which there is no concern about ascribing the conduct to the employer.

[00:35:10] Speaker 09:
Let me make sure my colleagues don't have additional questions for you at this time, Mr. Wolfman.

[00:35:14] Speaker 08:
I have one or two.

[00:35:16] Speaker 08:
This is Judge Katz.

[00:35:18] Speaker 08:
You can't see me, but I'm here.

[00:35:21] Speaker 08:
Do you quarrel with the proposition that de minimis harms are not actionable under Title VII?

[00:35:33] Speaker 11:
I do.

[00:35:35] Speaker 11:
It depends what the question entails.

[00:35:38] Speaker 11:
I don't think that Title VII incorporates any de minimis exception.

[00:35:43] Speaker 08:
And this goes back to my discussion with the chief judge that- So you think Judge Sutton got it wrong in threat to even to say while he seemed to be pushing the law in a plaintiff friendly direction,

[00:36:03] Speaker 08:
but he did say de minimis harms are not actionable.

[00:36:08] Speaker 08:
You disagree with that?

[00:36:10] Speaker 11:
I do.

[00:36:11] Speaker 11:
There is no de minimis exception within the terms of Title VII.

[00:36:15] Speaker 08:
No, but there's a centuries old background rule, de minimis non cura lex.

[00:36:23] Speaker 11:
That is correct.

[00:36:25] Speaker 11:
But here's an important difference.

[00:36:28] Speaker 11:
This court has said,

[00:36:29] Speaker 11:
for instance, in public citizen versus young, in applying that doctrine, you have to look at the purposes of the particular statute and have to train on the words of those statutes.

[00:36:41] Speaker 11:
Section 703A1 is capacious, and our position is that once you've proven discrimination,

[00:36:50] Speaker 11:
you've gotten over any harm that could be viewed as de minimis.

[00:36:55] Speaker 11:
So elimination of any de minimis exception is part and parcel of the words of the statute.

[00:37:02] Speaker 11:
The stigma alone, discrimination itself, is enough of a harm.

[00:37:07] Speaker 11:
It's an Article III harm, and it gets you over any de minimis hurdle that might exist.

[00:37:13] Speaker 08:
OK, one more question, which is,

[00:37:18] Speaker 08:
As far as I can tell, the parties have just addressed the substantive law under section 703.

[00:37:29] Speaker 08:
But you also need a cause of action which comes under section 706.

[00:37:36] Speaker 08:
And in order to bring a claim under 706, the plaintiff needs to be a person aggrieved.

[00:37:44] Speaker 08:
which is a term of art that usually connotes injury and seems like a pretty plausible textual hook for at least saying not a de minimis injury.

[00:38:02] Speaker 08:
Any thoughts on that?

[00:38:03] Speaker 11:
My answer is identical.

[00:38:06] Speaker 11:
My answer is that someone who, with respect to whom, a employment decision has been made with respect to race, sex, national origin, and so forth, has been aggrieved within the meaning of the statute.

[00:38:21] Speaker 11:
And so to the extent that there is any de minimis hurdle, it has been exceeded.

[00:38:26] Speaker 11:
And that constitutes aggrievement.

[00:38:29] Speaker 08:
I understand.

[00:38:30] Speaker 08:
Thank you, Council.

[00:38:33] Speaker 09:
my colleagues have additional questions for you at this time.

[00:38:35] Speaker 09:
Mr. Wolfman, we'll give you a little bit of time for rebuttal.

[00:38:39] Speaker 09:
Thank you.

[00:38:40] Speaker 09:
We'll hear from the United States now.

[00:38:42] Speaker 09:
Thank you.

[00:38:45] Speaker 04:
Good morning and may it please the court, Anna Baldwin for the United States as amicus.

[00:38:51] Speaker 04:
This court's decision in Brown is fundamentally flawed and should be overturned.

[00:38:56] Speaker 04:
That is so because as the court's been discussing with counsel for the plaintiff,

[00:39:00] Speaker 04:
Brown imposes an additional atextual injury requirement that is contrary to the text and purpose of Title VII.

[00:39:08] Speaker 04:
Brown's atextual additional injury requirement puts a whole range of blatantly discriminatory conduct beyond the reach of the statute.

[00:39:17] Speaker 04:
Under Brown, Ms.

[00:39:19] Speaker 04:
Chambers' employer could have said to her directly, I'm not going to transfer you because you're a woman.

[00:39:24] Speaker 04:
I'm only going to allow men to transfer.

[00:39:26] Speaker 04:
And under Brown's rule,

[00:39:28] Speaker 04:
That would be okay, there would be no claim unless Miss chambers had further proof of objectively tangible harm that result is clearly wrong.

[00:39:39] Speaker 05:
I just wanted to follow up just for my own clarification.

[00:39:43] Speaker 05:
You advocate for the same sort of categorical rule as to transfers that Ms.

[00:39:51] Speaker 05:
Chambers does here.

[00:39:52] Speaker 05:
And do you agree that every, when we say the word transfer, that actually just means any alteration in job duties, job location, job hours, no matter how temporary?

[00:40:11] Speaker 04:
I agree that, again, you know, as to transfers that's in the heartland the job that you do, there's no more fundamental term condition or privilege than your literal job.

[00:40:26] Speaker 04:
But in terms of, you know, the categoricalness of the rule what's a transfer what's a job assignment.

[00:40:32] Speaker 04:
The important focus is on what does terms, conditions, and privileges mean?

[00:40:37] Speaker 12:
Well, Ms.

[00:40:37] Speaker 12:
Baldwin, I'm curious why you're resisting that question.

[00:40:42] Speaker 12:
Can you give us an example of an action an employer could take based on race that would not violate the act?

[00:40:49] Speaker 04:
No, Your Honor, and I definitely don't mean to resist the question.

[00:40:52] Speaker 04:
I guess I can't.

[00:40:54] Speaker 04:
And I think what's important here is to continually separate out the discrimination element from the terms, conditions, and privileges element.

[00:41:02] Speaker 05:
My question is not whether something's allowed under Title VII, when some form of discrimination is allowed or not under Title VII.

[00:41:09] Speaker 05:
My question is, when you ask us to hold as categorical matter that transfers

[00:41:15] Speaker 05:
fall within based on intentional discrimination for our prohibited characteristic.

[00:41:23] Speaker 05:
Those transfers are categorically affecting terms, conditions of employment in a way that Title VII prohibits.

[00:41:33] Speaker 05:
And that's one decision.

[00:41:35] Speaker 05:
And another one would be any change in job assignment in any way, shape or form.

[00:41:42] Speaker 05:
And all I'm asking you is, are those the same things

[00:41:45] Speaker 04:
or different does your honor, those are different definitely there's a durational difference.

[00:41:51] Speaker 04:
That i'd understand between a you know, temporary job assignments and a permanent you know job position there's a different level of formality.

[00:41:59] Speaker 04:
But what there isn't a difference is that both of those things are encompassed within terms conditions and privileges of employment and so.

[00:42:06] Speaker 04:
It's certainly within this court's discretion to decide how broadly or narrowly to write the decision, but the import.

[00:42:13] Speaker 05:
Is there a definition of transfer, because the factors that seem to be relevant, change in job duties, does not imply a time limitation.

[00:42:24] Speaker 05:
change in the hours that you work, even if your job duties are the same, doesn't imply a time limitation.

[00:42:31] Speaker 05:
It could be changed for a day, it could be changed for a week, but if it's on the basis of race or sex, it's equally prohibited.

[00:42:38] Speaker 05:
It could be a change in your location.

[00:42:40] Speaker 05:
even if your job duties and hours remain the same.

[00:42:43] Speaker 05:
I assume, tell me if I'm wrong, if any of these things don't count as transfers in your view.

[00:42:46] Speaker 05:
And so if I've changed location, even say within a building from the east side to the west side, my duties are the same, my supervisors are the same, the hours are the same, but that would still be a transfer.

[00:43:02] Speaker 05:
Yeah, Your Honor, again.

[00:43:04] Speaker 05:
That does sound like job assignments and transfers are the same thing.

[00:43:06] Speaker 05:
So I'm just trying to understand what it is.

[00:43:08] Speaker 05:
No one defined transfer for me in all the briefs.

[00:43:11] Speaker 05:
And so I'm trying to figure out what it covers, because it's hard to figure out logically why it would stop with transfers if what we're looking at is whether terms, conditions, or employment, or privileges of employment were affected.

[00:43:23] Speaker 04:
I think the core point that Your Honor is getting at, you know, transfer is not a statutory term.

[00:43:28] Speaker 04:
The statutory term is terms, conditions, and privileges.

[00:43:32] Speaker 04:
And that is a capacious term.

[00:43:33] Speaker 04:
And that is a broad term.

[00:43:35] Speaker 04:
And it is meant to get at the whole sweep of things that an employer could do in a workplace.

[00:43:41] Speaker 04:
It's meant to strike out disparate treatment in the entire employer-employee relationship.

[00:43:46] Speaker 04:
So the limiting principle is not, if your honor is looking from one, it's not going to come from terms, conditions, and privileges.

[00:43:53] Speaker 04:
That means the who, what, when, and how of the employer-employee relationship.

[00:43:58] Speaker 04:
And it is going to be a broad definition.

[00:44:00] Speaker 04:
So the court could say, given the breadth of that definition, it is certainly obvious that a job transfer includes that.

[00:44:08] Speaker 04:
But the outer limits are going to be policed in the more marginal cases.

[00:44:12] Speaker 04:
Can you actually prove that it's discrimination?

[00:44:15] Speaker 04:
And while Brown's additional injury requirement showing objectively tangible harm, we don't think that that's correct.

[00:44:23] Speaker 04:
There's, of course, some sort of background principle of Article III

[00:44:27] Speaker 04:
injury in fact that's going to have to be proven in every case.

[00:44:33] Speaker 09:
Can I ask you what your conception is on behalf of the government of the difference between A1 and A2 in the statute?

[00:44:39] Speaker 09:
Because A2 speaks in terms of adverse effect and disparate impact falls within A2.

[00:44:47] Speaker 09:
And the way you've described A1 in answers to questions so far gives A1 a broad reading, understandably.

[00:44:54] Speaker 09:
And does A2 do any work with respect to disparate treatment in the United States' view?

[00:44:59] Speaker 09:
Because A2 has an adverse effect component that you think requires something that A1 doesn't.

[00:45:04] Speaker 09:
So does that mean that A2 is, at the end of the day, purely relevant in disparate impact cases and it just has no independent salience in disparate treatment cases?

[00:45:14] Speaker 04:
I think it's a plaintiff could plead a disparate treatment claim under a one or a two it's clear that you can't bring a disparate impact claim under a one.

[00:45:22] Speaker 09:
But is there any disparate treatment claim under a two that couldn't also be brought under a one.

[00:45:26] Speaker 04:
No there's I it's hard for me to think of one, but a two retains not withstanding the breadth of our understanding of terms conditions and privileges a two retains independent meaning because that's the original.

[00:45:39] Speaker 04:
disparate impact provision, further provisions from the 1991 amendments in subsection K, but A2 is as originally passed where disparate impact lives in the statute.

[00:45:49] Speaker 09:
So that's the only independent significance of A2 from the government's perspective is that it allows for disparate impact theory, but for disparate treatment claims, you don't even need A2 because you can bring anything under A1 that you could otherwise bring under A2.

[00:46:01] Speaker 04:
Well, historically, I think A2 was calling out very important

[00:46:06] Speaker 04:
you know, types of disparate treatment as well, the segregation, the classification.

[00:46:11] Speaker 04:
And so, you know, as the case law developed, I think A2 did important work at that time.

[00:46:16] Speaker 04:
But if you're asking, Your Honor, whether those claims couldn't equally be brought as A1 claims, they could equally be brought as A1 claims.

[00:46:25] Speaker 09:
And then can I just ask one other question about the relationship between some provisions that I know that the federal sector provision isn't directly at issue here, but I noticed that in your brief,

[00:46:33] Speaker 09:
In a footnote, you've cautioned us to be reluctant to talk about the federal sector provision, and specifically what you say is we should avoid suggesting the Title VII's federal sector provision necessarily prohibits the same conduct.

[00:46:45] Speaker 09:
And I'm just wondering, what is it about the federal sector provision that wouldn't reach the same conduct?

[00:46:51] Speaker 09:
Because when I look at the words, it seems, if anything, at least as broad as A1, because it speaks in terms of

[00:47:01] Speaker 09:
decisions affecting employees shall be made free from any discrimination based on the same categories and how is there a world in which the federal sector provision covers a lesser swath of conduct than a one does.

[00:47:16] Speaker 04:
Don't take issue, Your Honor, with the notion that any kind of discriminatory motive is equally prohibited under the provisions, but the federal sector provision doesn't have the same terms, conditions, and privileges language.

[00:47:28] Speaker 04:
It speaks in terms of prohibited personnel practices, and it has a separate statutory cross-reference that has a whole separate enumeration of what those prohibited personnel practices are.

[00:47:40] Speaker 04:
So as I sit here today, I can't

[00:47:43] Speaker 04:
come up with a concrete example of what would be a prohibited personnel practice that somehow doesn't overlap with terms, conditions, and privileges.

[00:47:51] Speaker 04:
But I think the important point is the court can address that sort of statutory textual matter as it arises.

[00:47:59] Speaker 04:
Under both cases, under both provisions, the kind of lateral transfers that we're talking about here, the job transfers would be prohibited on the basis of discrimination equally.

[00:48:12] Speaker 05:
Do you take issue with, you've referenced the objectively tangible quorum language from the Brown decision, what about the materially adverse language that's used there too, which the Supreme Court might also use in 704 in defining what discriminate against

[00:48:35] Speaker 05:
means?

[00:48:38] Speaker 05:
Do you agree that there is or do you think there is not a materially adverse requirement for 703A1?

[00:48:47] Speaker 05:
And two, if there is, is it just categorically met by the fact that a term condition or privilege of employment has been affected?

[00:48:56] Speaker 04:
Your Honor, I think either there's not a materially adverse requirement or it's categorically met by the fact of discrimination.

[00:49:04] Speaker 04:
Which one?

[00:49:04] Speaker 04:
Which one?

[00:49:05] Speaker 04:
Is it a matter of statutory interpretation?

[00:49:07] Speaker 04:
Well, as a matter of statutory interpretation, there are three elements to the 703A1 claim, that there's discrimination, which is to treat differently in a way.

[00:49:15] Speaker 05:
No, no, it's discriminate against, which is the same phrase that the Supreme Court said means materially adverse.

[00:49:21] Speaker 05:
So I'm asking you whether discriminate against in 704 means the same thing

[00:49:26] Speaker 05:
in 703A1.

[00:49:28] Speaker 04:
So respectfully, I don't understand white's discussion of materially adverse to be specifically about defining the term discriminate against.

[00:49:39] Speaker 04:
It's certainly true that both of 703A1 and 704 use the term discriminate against.

[00:49:47] Speaker 04:
What I understand, you know, the materially adverse discussion that's happening in white to be doing is saying,

[00:49:56] Speaker 04:
Look, this is a separate textual provision.

[00:49:59] Speaker 04:
It doesn't have the same restrictions as 703.

[00:50:03] Speaker 04:
It's not limited to terms, conditions, and privileges of employment.

[00:50:06] Speaker 04:
So it has no workplace limitation.

[00:50:08] Speaker 04:
And importantly, it has no limitation where there has to be a relationship to conduct on a discriminatory basis.

[00:50:16] Speaker 04:
And so we have to be able to separate out what is a meaningful harm from a trivial harm.

[00:50:23] Speaker 04:
And that's what the materially adverse requirement is doing.

[00:50:26] Speaker 04:
In 703 when you have intentionally discriminatory conduct that regards the workplace it's hard for me to come up with an example of a trivial example of intentional discrimination where you're having a policy that's going to discriminate distinguish between black and white employees and we're going to say that that's a trivial harm so it's because.

[00:50:51] Speaker 04:
704 doesn't have either the terms conditions and privileges, language, or the limitation to the workplace because retaliation can happen outside of the workplace, the court had to impose an additional materially adverse requirement there.

[00:51:06] Speaker 04:
So that's how I would understand the difference and why we don't think that there's a materially adverse requirement

[00:51:14] Speaker 04:
is applicable to A3.

[00:51:16] Speaker 04:
The injury requirement.

[00:51:18] Speaker 05:
So just to be clear then, you don't think there's a materially adverse requirement.

[00:51:22] Speaker 05:
I get that you think, even if someone said there was, it would categorically be met because you're affecting terms, conditions, and privileges of employment.

[00:51:31] Speaker 05:
Yes.

[00:51:32] Speaker 05:
You don't textually adjust the government's position as there is no materially adverse, material adversity requirement for 70381.

[00:51:39] Speaker 05:
Textually, yes, Your Honor.

[00:51:43] Speaker 09:
Let me make sure my colleagues don't have additional questions for you, Miss Baldwin.

[00:51:50] Speaker 02:
Thank you very much.

[00:51:51] Speaker 09:
Thank you.

[00:51:51] Speaker 09:
We'll hear from the district now, Miss Vanzile.

[00:51:56] Speaker 14:
Good morning, and may it please the court, Caroline Vanzile on behalf of the District of Columbia.

[00:52:01] Speaker 14:
The district agrees that this court should overrule the objectively tangible harm test from Brown versus Brody with respect to lateral transfers.

[00:52:09] Speaker 14:
But how the court arrives at that result matters tremendously.

[00:52:13] Speaker 14:
Much of the briefing in this case is focused on two starkly contrasting options.

[00:52:17] Speaker 14:
On the one hand, maintain the status quo as is, and on the other hand, become the first court in the country to throw open the doors and say that all workplace conduct is actionable under Title VII, no matter how innocuous.

[00:52:29] Speaker 14:
But the Supreme Court has rightly cautioned against issuing a broad ruling where a narrow one will do.

[00:52:35] Speaker 14:
Here, the district believes that it would suffice to hold that the conduct at issue adhere a lateral transfer when made on the basis of a protected trait constitutes discrimination with respect to the terms of employment.

[00:52:48] Speaker 14:
Making a modest adjustment or clarification to this court's case law, similar to the approach taken by the Sixth Circuit in the three case with respect to lateral transfers would suffice to answer the question presented here.

[00:53:02] Speaker 14:
As to actions outside the scope of the lateral transfer, this court should proceed in a case by case common law fashion to determine what exactly constitutes a condition term or privilege of employment and in what circumstances the adversity threshold is met.

[00:53:17] Speaker 09:
What's the adversity threshold?

[00:53:19] Speaker 09:
Because you said two things.

[00:53:21] Speaker 09:
One is whether the challenge to action affects a term, condition, or privilege of employment.

[00:53:28] Speaker 09:
And then you also said an adversity threshold.

[00:53:31] Speaker 09:
And I can see how term, condition, or privileged conceptually could be a limitation.

[00:53:36] Speaker 09:
But is your view that there is some adversity threshold that's independent of that?

[00:53:43] Speaker 14:
We do believe that there are two separate requirements of the statute, Your Honor.

[00:53:47] Speaker 14:
Discriminate against means to treat differently in a way that injures or to treat worse.

[00:53:52] Speaker 14:
The Supreme Court has said that both in White and in Bostock.

[00:53:55] Speaker 14:
So that is one requirement.

[00:53:56] Speaker 14:
And then separately, you must also- And what would fall outside of that?

[00:54:00] Speaker 09:
So in a case involving differential treatment, let's just stipulate that there's differential treatment based on a prohibited characteristic.

[00:54:09] Speaker 09:
What's a case in which

[00:54:11] Speaker 09:
that the disparate differential treatment based on a prohibited characteristic nonetheless doesn't satisfy the adversity threshold because it doesn't constitute discriminate against.

[00:54:23] Speaker 14:
So your honor, we think that there are a variety of situations that may arise in the workplace that that would be truly de minimis, for example,

[00:54:32] Speaker 14:
If I am assigned the cubicle with a view of the fig tree, but not of the fern, which I preferred, that seems to be relatively de minimis.

[00:54:40] Speaker 12:
If my- Suppose it was done on the basis of race.

[00:54:43] Speaker 12:
Suppose there was a memo in the file which said, we're not going to assign the employee to the view of the fig tree because the employees are black.

[00:54:53] Speaker 14:
Well, Your Honor, as- What's the answer to that question?

[00:54:58] Speaker 12:
Take my hypothetical.

[00:54:59] Speaker 12:
There's evidence in the record.

[00:55:01] Speaker 12:
that the employee who asked to be transferred to the view of the fig tree was denied it because the supervisor wrote in his file that he was African-American.

[00:55:13] Speaker 14:
Your honor, we do not think that that would be actionable.

[00:55:15] Speaker 14:
That would be de minimis.

[00:55:16] Speaker 14:
That said, as a normative matter, obviously, no.

[00:55:19] Speaker 12:
Wait, so this statute was passed in 1964 when there was blatant

[00:55:30] Speaker 12:
racial discrimination in the workforce.

[00:55:33] Speaker 12:
And you think the DC Circuit sitting on a bank should now say that the kind of blatant racial discrimination in the hypothetical I just gave you was not in fact what Congress had intended?

[00:55:47] Speaker 12:
Do you have any evidence at all for that?

[00:55:51] Speaker 14:
Well, respectfully, Your Honor, we believe that

[00:55:55] Speaker 14:
that what Congress intended and what is sown throughout the legislative history is to eliminate differences in terms or conditions that would affect your opportunities.

[00:56:04] Speaker 12:
It was to eliminate racial discrimination in employment.

[00:56:08] Speaker 12:
That's what Title VII was passed for.

[00:56:11] Speaker 14:
Well, again, respectfully, Your Honor.

[00:56:13] Speaker 12:
Am I wrong about that?

[00:56:16] Speaker 14:
It uses the term discriminate again.

[00:56:18] Speaker 12:
Am I wrong that Title VII was passed to eliminate racial discrimination in the workforce?

[00:56:27] Speaker 14:
No, Your Honor, but there's a question as to what discrimination means.

[00:56:31] Speaker 12:
And we would merely suggest- You think that Congress in 1964 intended to eliminate really bad discrimination, but not

[00:56:42] Speaker 12:
not so bad discrimination.

[00:56:44] Speaker 12:
Is that the point?

[00:56:46] Speaker 12:
Discrimination that maybe a court doesn't think is serious as other kinds of discrimination.

[00:56:51] Speaker 12:
There's certainly no evidence for that in the text of the statute.

[00:56:58] Speaker 12:
I'm a little surprised to hear that we would be ruling that exactly the kind of racially motivated workplace behavior that the act was passed

[00:57:10] Speaker 12:
to deal with, in fact, isn't covered by the act.

[00:57:15] Speaker 14:
Two points, respectfully, Your Honor.

[00:57:16] Speaker 14:
As to the text, we believe that the term discriminate against does have a diversity threshold that it means to discriminate against in a manner that injures.

[00:57:26] Speaker 12:
And so, for example- Well, in my case, take your fig tree against.

[00:57:31] Speaker 12:
If an employee who is African-American is denied the office with the view of the fig tree,

[00:57:39] Speaker 12:
when a white employee would get it, what's not discriminatory about that?

[00:57:47] Speaker 12:
What's not discriminating?

[00:57:49] Speaker 12:
Isn't that discriminating against the African-American employee if that office with the fig tree would have gone to a white employee?

[00:58:01] Speaker 14:
Your honor, respectfully, there's no

[00:58:04] Speaker 14:
objective injury in that circumstance.

[00:58:07] Speaker 14:
And we don't think that Congress went past it.

[00:58:11] Speaker 12:
No, no.

[00:58:13] Speaker 12:
I remember my hypothetical includes evidence in the record, in the employee's file, that this particular employee was denied the view of the fig tree because she's an African American.

[00:58:30] Speaker 12:
Your honor that's that's pure position is that that's not covered by title seven.

[00:58:34] Speaker 12:
I don't mean that she wins she might lose her case, but the DC district's position is that that is not covered by title seven correct.

[00:58:42] Speaker 14:
No, your honor, we don't believe that that is covered by the text of title seven much in the same way.

[00:58:47] Speaker 14:
that discrimination by religious employers in certain contexts or small employers covered by the text of the statute.

[00:58:54] Speaker 16:
Would the same be true in a workplace where the women were expected to bring the tea and clear out the refrigerator or everybody was expected to

[00:59:07] Speaker 16:
you know, pray, even though there were some non-practicing Christian members of the workplace, I mean, across themselves.

[00:59:17] Speaker 16:
You know, there are small things that, if they're imposed based on a protected characteristic, are seriously discriminatory.

[00:59:27] Speaker 16:
No?

[00:59:27] Speaker 16:
Or is that not the district's position?

[00:59:30] Speaker 14:
Your Honor, we think that that situation is different, and we think that it would likely be actionable.

[00:59:34] Speaker 14:
Because those would be changes to the conditions of employment.

[00:59:37] Speaker 14:
And even if you apply the Supreme Court severe and pervasive test from cases like Meritor, we think an environment in which a woman walks in every day and is forced to serve tea where her male employees are not simply on the basis of her gender or anything that is equivalent would rise to the level of pervasive hostility.

[00:59:58] Speaker 14:
And so we do think that that distinction matters.

[01:00:00] Speaker 14:
What we're advancing here is simply the same position that was adopted.

[01:00:05] Speaker 05:
Why isn't location a change in location?

[01:00:09] Speaker 05:
Let's say men get offices with views and women get offices with no windows.

[01:00:18] Speaker 14:
So I think you would ask two questions there, Your Honor.

[01:00:20] Speaker 14:
One is, is that a condition of employment?

[01:00:22] Speaker 14:
And I think that- Is it or not?

[01:00:24] Speaker 05:
Is location a condition of employment?

[01:00:26] Speaker 14:
I think if it's window, no window.

[01:00:28] Speaker 05:
I think that that would rise to the level of what's outside the window.

[01:00:32] Speaker 05:
It's a window case.

[01:00:33] Speaker 05:
So now we've all got windows, but women get views of the building next door.

[01:00:38] Speaker 05:
So essentially a brick wall and men get views of the river.

[01:00:45] Speaker 14:
And then I think the question would be your honor is that

[01:00:47] Speaker 14:
de minimis or not.

[01:00:50] Speaker 14:
No, I'm not even asking you that.

[01:00:52] Speaker 05:
What I'm asking you is whether that location is a term, condition, or privilege of employment.

[01:01:01] Speaker 14:
I think that it could well be.

[01:01:06] Speaker 14:
Sorry.

[01:01:08] Speaker 14:
I'm sorry, Your Honor.

[01:01:11] Speaker 05:
Will you finish your sentence?

[01:01:12] Speaker 05:
Sorry.

[01:01:13] Speaker 14:
I think that it could well be.

[01:01:15] Speaker 14:
I think as to what constitutes a condition of employment, it's going to be a circumstantial inquiry.

[01:01:20] Speaker 14:
What I don't think is I don't think that that would count as a lateral transfer.

[01:01:24] Speaker 14:
And again, we think that that is the only issue that the court needs to address in this on-bank case.

[01:01:29] Speaker 14:
It is not a lateral transfer to give me a window office with one view versus another.

[01:01:34] Speaker 14:
And as to lateral transfer.

[01:01:37] Speaker 09:
Go ahead.

[01:01:38] Speaker 09:
I'm sorry, Judge, one, please.

[01:01:39] Speaker 09:
Go ahead.

[01:01:41] Speaker 05:
Please.

[01:01:43] Speaker 05:
The accounting group has gotten really large and I'm in the accounting group and so it's divided physically into two spaces.

[01:01:52] Speaker 05:
One up on the top floor of the penthouse and one down in the basement, which was its original location.

[01:02:01] Speaker 05:
And a decision is made that

[01:02:05] Speaker 05:
Hours are going to be the same.

[01:02:07] Speaker 05:
Duties are going to be exactly the same.

[01:02:09] Speaker 05:
Supervisors will be the same.

[01:02:11] Speaker 05:
But we're going to put the male accountants up with the penthouse area and the women you stay in the basement.

[01:02:18] Speaker 05:
And I apply to go to the penthouse because, golly, who doesn't want to be there instead of in the basement?

[01:02:23] Speaker 05:
And they say, no, you cannot move there because you're a woman.

[01:02:27] Speaker 05:
You will stay in the basement accounting group.

[01:02:30] Speaker 05:
Is that a transfer, denied transfer?

[01:02:33] Speaker 14:
That is not a denial of a transfer because the position itself hasn't changed.

[01:02:38] Speaker 05:
Location has changed.

[01:02:40] Speaker 05:
Ortiz Diaz, we talked about location as a form of transfer.

[01:02:45] Speaker 14:
In Ortiz Diaz, Your Honor, it was a transfer between two different offices.

[01:02:50] Speaker 14:
And so I think that being sent to a different city or a different state in the mine run of cases, you know, unless you're a different building, a different part of D.C.

[01:02:59] Speaker 05:
wouldn't matter.

[01:03:00] Speaker 14:
A different part of DC, if it's not a change in position, if you're not, if your position is not been assigned to office building A versus office building B, which I think.

[01:03:09] Speaker 05:
How do you define transfer then?

[01:03:11] Speaker 05:
Because my hypothetical certainly affects either a term or condition, your location of where you're doing your work.

[01:03:18] Speaker 05:
That seems to me, at least arguably, but maybe I'm wrong.

[01:03:21] Speaker 05:
How are you defining transfer that it doesn't include such a change in the physical location of where you're working?

[01:03:28] Speaker 14:
So, Your Honor, and

[01:03:30] Speaker 14:
To be candid, we searched the case law for a very good and clear definition of lateral transfer, and we're not able to find one.

[01:03:36] Speaker 05:
I couldn't find one either, so that's why I'm looking for your help.

[01:03:39] Speaker 14:
But looking to this court's cases, and given that we think a transfer is going to be the change in terms of the terms of employment, we think that it would be something relatively formal.

[01:03:51] Speaker 14:
Terms, conditions, or privileges, any of those could be affected by transfer, right?

[01:03:55] Speaker 14:
Or you think transfers are only about terms?

[01:03:57] Speaker 14:
We think that they very neatly fit into the definition of terms.

[01:04:01] Speaker 14:
To be sure, they could be conditions as well, but because terms is arguably the most demanding language in the statute, if you meet that, we think that you are set.

[01:04:11] Speaker 14:
And we also think that there's not gonna be such a thing as a de minimis term.

[01:04:15] Speaker 12:
Can I ask a question about transparency?

[01:04:17] Speaker 12:
I'm curious, what's the policy reason underlying your

[01:04:26] Speaker 12:
resistance to chambers articulation of the standard here.

[01:04:31] Speaker 12:
What is, I'm curious to know what is driving you to want to create this space?

[01:04:37] Speaker 12:
Is it as the court appointed amicus says that we just need to leave room for employers to manage the workplace?

[01:04:45] Speaker 12:
Is that what this is about?

[01:04:47] Speaker 14:
I think that's right, your honor.

[01:04:49] Speaker 14:
So take the hypothetical that the amicus articulated is perhaps on one afternoon,

[01:04:55] Speaker 14:
you're transferred from, you know, sporting goods to.

[01:05:00] Speaker 12:
Yeah.

[01:05:01] Speaker 14:
Right.

[01:05:01] Speaker 12:
So that's a pure example.

[01:05:03] Speaker 12:
Right.

[01:05:04] Speaker 14:
Exactly.

[01:05:05] Speaker 14:
Exactly.

[01:05:05] Speaker 14:
Now, as an employer, you're not necessarily going to be able to articulate to five, 10 years later why you made that transfer, even though it has not that may have nothing to do with race or with gender.

[01:05:20] Speaker 14:
And so we think that the statute does need to be read in a way that's workable and in a way that allows employers to engage in the day-to-day business of management.

[01:05:32] Speaker 12:
I understand that, but isn't it perfectly workable to say that the employer can manage

[01:05:39] Speaker 12:
the workforce in any way the employer wants to, so long as the employer doesn't take account of race in its decisions.

[01:05:48] Speaker 12:
Why isn't that completely workable?

[01:05:50] Speaker 12:
The courts have a huge amount of experience in teasing out the different cases where there is discrimination from cases where there isn't.

[01:06:01] Speaker 12:
McDonald Douglas is a pretty good workhorse that has done that successfully.

[01:06:06] Speaker 12:
I really am trying to understand what it is that's so important to create this space for some discrimination for employers.

[01:06:19] Speaker 12:
What is that?

[01:06:20] Speaker 12:
What's that about?

[01:06:22] Speaker 12:
Can you explain it to me a little more?

[01:06:25] Speaker 14:
Of course, Your Honor.

[01:06:25] Speaker 14:
And again, as a normative matter, we would reiterate that

[01:06:30] Speaker 14:
The ideal is to eliminate all discrimination in the workplace.

[01:06:34] Speaker 14:
We just don't think that the statute does that.

[01:06:37] Speaker 14:
And in terms of why we think that the de minimis threshold is required from a practical standpoint, I think there are two different points.

[01:06:46] Speaker 14:
One is the point that I just articulated, which is that in a scenario where

[01:06:54] Speaker 14:
difference in treatment enough is sufficient to shift the burden and then the employer needs to articulate its non-discriminatory reason.

[01:07:01] Speaker 14:
If we're talking about de minimis activities, you know, who got the earlier lunch break on one day or the nicer customer, those aren't things that are going to be memorialized and they're not necessarily things that the employer is going to be able to present even if the motive was not discriminatory.

[01:07:20] Speaker 14:
And so to have no de minimis

[01:07:23] Speaker 14:
exemption puts the employer in a bit of a bind.

[01:07:27] Speaker 12:
In those kinds of situations, it's going to be just as difficult, if not more so, for the plaintiff to come up with some evidence of discrimination.

[01:07:36] Speaker 12:
The plaintiff can't just say, I was discriminated against by not getting the view of the fig tree.

[01:07:45] Speaker 12:
The employee has to come up with

[01:07:47] Speaker 12:
you know, either direct evidence of that or enough evidence to create a prima facie case.

[01:07:54] Speaker 12:
So that's who has to first come up with the evidence.

[01:07:58] Speaker 12:
The employer doesn't have to prove anything until the employee gets over that hump.

[01:08:04] Speaker 12:
And so given that, I guess I still don't understand what it is you're trying to protect employers from given the

[01:08:17] Speaker 12:
the purpose of Title VII when it was first enacted to rid the workplace of racial discrimination.

[01:08:25] Speaker 12:
I still don't get what it is you're trying to accomplish here by leaving some space for quote minimal or de minimis discrimination.

[01:08:38] Speaker 14:
Respectfully, Your Honor, I would disagree as to how high a burden the employee has at least at the motion to dismiss

[01:08:47] Speaker 14:
threshold.

[01:08:48] Speaker 14:
I mean, in many instances, it is enough to simply allege that I was treated differently than the male in the cubicle next to me and then suddenly the doors to discover.

[01:08:57] Speaker 12:
That's exactly why most employers are smart enough to file a motion for summary judgment.

[01:09:01] Speaker 12:
That's where you get rid of these cases.

[01:09:04] Speaker 14:
But after a tremendous amount of burdensome discovery,

[01:09:08] Speaker 12:
And time and discovery of course have very.

[01:09:14] Speaker 12:
helpful tools for protecting employers from excessive discovery.

[01:09:19] Speaker 14:
To be sure, your honor, but I think I think this case actually is a good example of the burdens that can be placed on an employer.

[01:09:28] Speaker 14:
when a case moves past the motion to dismiss.

[01:09:30] Speaker 14:
I mean, some of the district's most high level officials were deposed here.

[01:09:35] Speaker 12:
I thought your position was this case was actionable.

[01:09:38] Speaker 12:
Isn't that your position?

[01:09:40] Speaker 12:
That is, but we're talking about- Then I really don't understand where you're going.

[01:09:43] Speaker 12:
I mean, you're telling me that what you're trying to do is protect employers from undue burdens.

[01:09:50] Speaker 12:
And at the same time, you say this case is an example of the situation employers are put in, but then you tell us this case is actionable.

[01:10:00] Speaker 12:
I don't get it.

[01:10:02] Speaker 14:
So I think that this case is an example of the burdens that occur in general at summary judgment.

[01:10:08] Speaker 14:
To be sure, we think that this case, in terms of the adverse action, is actionable because we think all lateral transfers are actionable.

[01:10:16] Speaker 14:
But you could just as easily imagine a similar case about

[01:10:20] Speaker 14:
something like the view of the fig tree.

[01:10:23] Speaker 14:
And in those instances, we do think that it makes sense to have some mechanism to sort out.

[01:10:29] Speaker 09:
Can I just make one clarification, which is as I understand your conception of what you're categorizing as de minimis, it's some adversity threshold.

[01:10:38] Speaker 09:
It's different, I think, than the one that the Sixth Circuit was talking about in the threat case or three, which however you pronounce it, because as I understand it,

[01:10:47] Speaker 09:
There, the Sixth Circuit was talking about a cross-cutting principle of de minimis harm that isn't tethered to Title VII as such.

[01:10:54] Speaker 09:
It doesn't come from the text of Title VII.

[01:10:57] Speaker 09:
But your understanding of Title VII is that under the text of A1, discriminate against just doesn't occur unless there's been a level of harm.

[01:11:06] Speaker 09:
So am I right in understanding that they're coming from different places?

[01:11:09] Speaker 09:
You think it comes from Title VII itself?

[01:11:11] Speaker 09:
It's not a generally applicable de minimis harm principle, whereas the Sixth Circuit, I thought, viewed it differently.

[01:11:18] Speaker 14:
So we think that the fact that some level of injury is required does come from the statutory text discriminate against, again, because the Supreme Court has said so, interpreting the identical words in white and reiterated something along those lines in Bostock

[01:11:35] Speaker 14:
As to what that level of harm should be, whether it's material adversity or de minimis harm that we do think comes from the background principle of de minimis.

[01:11:50] Speaker 14:
occurrences being exempted from statutes in the ordinary course.

[01:11:54] Speaker 16:
So you see the de minimis background rule, and then unlike Mr. Wolfman, who says that is just swept away by the discrimination, anything that's that's for a prohibited discriminatory reason is not going to be de minimis.

[01:12:09] Speaker 16:
And you're saying, well, no, action statute makes room for that in its text.

[01:12:14] Speaker 16:
And so that's where you're sort of belting and suspendering with statutory text and with the background de minimis rule.

[01:12:21] Speaker 16:
Is that right?

[01:12:23] Speaker 14:
I think that is one way to look at it, Your Honor.

[01:12:26] Speaker 14:
And again, the de minimis rule is an ancient principle, and it's something of a rebuttable presumption, right?

[01:12:34] Speaker 14:
When we assume that Congress intends for a de minimis rule to apply, unless it expressly says otherwise or the statutory conduct

[01:12:42] Speaker 14:
context indicates otherwise.

[01:12:44] Speaker 14:
And here, when the statute speaks to, you know, larger issues in the employment environment, terms, conditions, privileges, we know that those words don't cover absolutely everything in the workplace because the Supreme Court has said so in case.

[01:13:03] Speaker 09:
on what it means to be a transfer because what you're saying is lateral transfers per se are covered even if you interpose an injury requirement because lateral transfers by definition satisfy the injury requirement.

[01:13:16] Speaker 09:
And there's been a lot of questions this morning that ask, well, what constitutes a transfer as opposed to something that affects the conditions, but that doesn't rise to the level of transfer.

[01:13:25] Speaker 09:
And I guess the way I was thinking about it, and maybe this is wrong and please correct me if this is wrong, I thought the employer defined what a position is.

[01:13:33] Speaker 09:
And then when somebody wants to move from one position to another, that's just based on the way the employer has defined a position.

[01:13:39] Speaker 09:
So, for example, to use the sporting goods and power tools example, if an employer classified a position as a power tools position and a sporting goods position, well, then moving from one to the other would be a transfer.

[01:13:51] Speaker 09:
But if employer just had salesperson and then had job tasks within it,

[01:13:55] Speaker 09:
could result in an assignment either to sporting goods or to power tools.

[01:13:59] Speaker 09:
Well, that wouldn't be a transfer.

[01:14:00] Speaker 09:
It would be a switch of assignments within the position itself.

[01:14:03] Speaker 09:
It would functionally be the exact same thing because what you'd be doing is you'd be working in one section of the store as opposed to another.

[01:14:09] Speaker 09:
It's just that in one situation, the employer would have chosen to define that as a position.

[01:14:13] Speaker 09:
But another situation they wouldn't have is that am I wrong about understanding the difference between transfers and switches and assignments that way that it's bound up and how the employer defines a position or is is that your understanding.

[01:14:26] Speaker 14:
We would agree with that your honor with with two small caveats, one being that many contracts aren't necessarily Britain, there are.

[01:14:36] Speaker 14:
informal employment agreements out there.

[01:14:38] Speaker 14:
And so the inquiry may be a little more complicated in those scenarios.

[01:14:46] Speaker 14:
But in general, we think that looking to the contract, whether it be expressed or implied, is the right way to think about what constitutes a change.

[01:14:55] Speaker 12:
I'm thinking about your point that Congress legislates with the background of the de minimis rule.

[01:15:06] Speaker 12:
It's a problem here that the only thing Congress said was, quote, discriminate against any individual with respect to, suppose Congress had said, discriminate against any individual in any respect at all.

[01:15:25] Speaker 12:
with respect to his compensation.

[01:15:26] Speaker 12:
Would that have gotten rid of the de minimis rule?

[01:15:30] Speaker 12:
I think that that would be sufficiently expressed, Your Honor, to- So the problem is Congress didn't add the phrase to discriminate against individual in any respect at all, right?

[01:15:48] Speaker 14:
Or something similar that would make clear that- I'm really curious.

[01:15:52] Speaker 12:
Do you know of any case where we have

[01:15:55] Speaker 12:
Do you know of any decision which has ever required Congress to be, I mean, it does say now discriminate against any individual and that's not enough.

[01:16:10] Speaker 12:
Do you know of any case that supports that position you're taking?

[01:16:14] Speaker 14:
I mean, I felt- I don't know of a case that speaks in exactly those terms, but there are cases like Sandifer and others

[01:16:24] Speaker 14:
that do spell out when the presumption is rebutted.

[01:16:27] Speaker 14:
And they are cases where either the language is very explicit and expansive, or where the statute itself speaks to absolute minutiae, like donning and doffing clothing.

[01:16:37] Speaker 14:
And I just don't think we have that here, particularly because Congress did specify terms, conditions, and privileges of employment rather than saying any workplace conduct.

[01:16:47] Speaker 12:
Do you know whether there's anything in the legislature?

[01:16:49] Speaker 12:
I honestly don't know the answer to this.

[01:16:51] Speaker 12:
Is there anything in the legislative history

[01:16:53] Speaker 12:
suggested Congress wanted to leave a de minimis space.

[01:16:56] Speaker 12:
Do we know that?

[01:16:59] Speaker 14:
Not using the words de minimis, not that I'm aware of.

[01:17:02] Speaker 12:
Any word like that, whatever.

[01:17:07] Speaker 14:
Not that comes to mind.

[01:17:09] Speaker 14:
The two things that do come to mind from the legislative history are, again, the repeated reference to employment opportunities, and then also the references to wanting to preserve, to the maximum extent possible, management and union

[01:17:23] Speaker 14:
prerogative, so that has to leave space for something and certainly leave space for a de minimis exception.

[01:17:30] Speaker 14:
But I would just reiterate what the Sixth Circuit said, which is that de minimis means de minimis.

[01:17:35] Speaker 14:
It's not going to be something.

[01:17:36] Speaker 14:
Ms.

[01:17:37] Speaker 14:
Fanzel, can I ask you a question?

[01:17:38] Speaker 15:
If there is an exception for de minimis, what is the gap between that and having a material harm?

[01:17:45] Speaker 15:
I mean, if something is not de minimis, isn't it by definition a material harm?

[01:17:52] Speaker 15:
I mean, what's the gap between materiality and de minimis?

[01:17:55] Speaker 15:
I'm just not sure I understand what that gap is.

[01:17:59] Speaker 14:
Well, and to be fair, your honor, it is a tricky difference to encapsulate, particularly given that the Sixth Circuit recently said that at least in the context of the anti-discrimination provision, the two can be read to mean the same thing.

[01:18:13] Speaker 14:
I think the reason why we

[01:18:16] Speaker 14:
are slightly resistant to the materiality threshold is just that that has been given a very specific meaning in the context of the anti-retaliation provision, which requires some concreteness.

[01:18:29] Speaker 14:
We think that that's right, but we think that because the anti-retaliation provision specifies neither the level of harm nor the type of harm, it covers anything in the workplace or not.

[01:18:41] Speaker 14:
and the anti-discrimination provision differs.

[01:18:44] Speaker 14:
It at least specifies the type of harm, terms, conditions, privileges.

[01:18:48] Speaker 14:
We think that it's appropriate to use a lesser de minimis threshold because it has that tether.

[01:18:54] Speaker 09:
Doesn't de minimis mean immaterial?

[01:18:58] Speaker 14:
I mean, it means trivial.

[01:19:00] Speaker 14:
It means trifles.

[01:19:02] Speaker 14:
And again, it's going to be context specific.

[01:19:06] Speaker 14:
So if this court wanted to use the word material and say,

[01:19:11] Speaker 14:
material de minimis, no difference, the same way that the Sixth Circuit did in the Three case.

[01:19:19] Speaker 14:
We would not have a substantial objection to that.

[01:19:23] Speaker 15:
Isn't then your objection just with how Brown has been applied in particular cases and not so much with the legal standard articulated in Brown?

[01:19:34] Speaker 14:
I think that there are two things that we

[01:19:38] Speaker 14:
see major issues within Brown.

[01:19:40] Speaker 14:
I think one is the importation of the Elrith test that is supposed to be used for vicarious liability, the imposition of that test for all substantive discrimination claims.

[01:19:52] Speaker 14:
I think that that is where the vast majority of the confusion or conflict in this court's cases has come from.

[01:20:01] Speaker 14:
And so we would certainly say that the court should

[01:20:05] Speaker 14:
go ahead and clarify that that is not the standard that applies.

[01:20:08] Speaker 08:
The other thing- I'm sorry, just on that point, you mean specifically the concept of a tangible injury as opposed to a material, something material as in non-dominimous?

[01:20:23] Speaker 14:
Yes, that's right.

[01:20:24] Speaker 14:
It's really the word tangible here that I think is the heart of the confusion in cases like Ortiz Diaz and

[01:20:31] Speaker 14:
and Douglas in the back and forth between the majority and the dissent there.

[01:20:35] Speaker 14:
Because in Meritor, the Supreme Court specifically said that harm does not have to be tangible to be actionable under Title VII.

[01:20:41] Speaker 14:
So I think if you strike the Elruth test from Brown, and then the second modification that we think is warranted in the context of this case is Brown creates a rule that says something more is needed other than the lateral transfer itself.

[01:20:59] Speaker 14:
to make conduct actionable under Title VII.

[01:21:02] Speaker 14:
And we think that the reverse rule is actually more appropriate.

[01:21:06] Speaker 14:
The categorically, a lateral transfer should be actionable because it goes to the very core of your employment relationship.

[01:21:14] Speaker 14:
And in that sense, it is sort of like the internal version of not hiring or firing a position that is open to others is not open to you.

[01:21:25] Speaker 14:
And in those contexts, we don't ask, you know, if you weren't hired for a job, well, was the job that you occupy currently worse than the job that you were applying for?

[01:21:37] Speaker 14:
Simply being deprived of the position is enough to constitute the harm.

[01:21:41] Speaker 14:
So we do think that that was the best.

[01:21:43] Speaker 14:
Can I ask just to try to think?

[01:21:46] Speaker 05:
Am I stepping on someone else?

[01:21:48] Speaker 08:
Oh no, go ahead.

[01:21:51] Speaker 05:
On this de minimis,

[01:21:54] Speaker 05:
So if non-dominimous is the test that you want, is there a gap between having an injury that satisfies Article III standing?

[01:22:05] Speaker 05:
And so dominimous injuries, I take it would satisfy Article III standing, but not state of claim under Title VII.

[01:22:17] Speaker 14:
We do think that there is,

[01:22:19] Speaker 14:
some difference there again, because the de minimis would be pegged to terms, conditions or privileges of employment.

[01:22:25] Speaker 14:
So, for example, under Article three, aesthetic harms are actionable.

[01:22:29] Speaker 14:
We don't think that most purely aesthetic harms are.

[01:22:32] Speaker 05:
Well, it's a Title seven case.

[01:22:34] Speaker 05:
So what they're going to say is I was I think this would satisfy Article three.

[01:22:38] Speaker 05:
Tell me if I'm wrong.

[01:22:39] Speaker 05:
I was treated differently because of my race, sex, ethnicity, religion.

[01:22:45] Speaker 05:
And that's enough to get you past Article three.

[01:22:49] Speaker 14:
I think that that is correct.

[01:22:53] Speaker 14:
And then we would say- That's not enough.

[01:22:55] Speaker 05:
And if they add with respect to a term, condition, or privilege of employment, that is not enough by itself to get you passed into non-dominant misland.

[01:23:06] Speaker 14:
We think that's right.

[01:23:08] Speaker 05:
I mean, the injury we think- Which is right, sorry.

[01:23:11] Speaker 05:
I'm not being clear on my question.

[01:23:14] Speaker 05:
So I've said that I was treated differently based on my sex.

[01:23:18] Speaker 05:
with respect to a term condition or privilege of employment, where I work, which office I'm in.

[01:23:27] Speaker 05:
So that would be enough for stamping.

[01:23:30] Speaker 05:
Does that get you, does that allegation, where I do my work, which office, does that get you past the non-dominimous, your non-dominimous special?

[01:23:42] Speaker 14:
We don't think it necessarily would get you past the non-dominimous threshold.

[01:23:45] Speaker 14:
So we do think that non-dominimous- The 1286 dismissal of that complaint.

[01:23:52] Speaker 05:
Right, so again, if we're- What more are they supposed to say?

[01:23:54] Speaker 05:
I had a non-dominimous injur- I'm sorry, I have been discriminated against based on a protected characteristic in a way that has injured me, because I have Article III injury.

[01:24:06] Speaker 05:
So I have been, it's a discrimination in Basdak's word that injured me.

[01:24:11] Speaker 05:
and it's with respect to a term condition or privilege of employment, and you say they have to say, what else do they have to mention?

[01:24:20] Speaker 14:
Well, I mean, to satisfy Iqbal and Twombly, you would have to explain what the term condition or privilege is, right?

[01:24:26] Speaker 05:
I just said it's where I do my work, which location I do my work in, which office.

[01:24:31] Speaker 14:
Right, and then the question is, have you plausibly claimed a non-diminimus?

[01:24:37] Speaker 14:
Right, why is it the location of doing the work

[01:24:41] Speaker 14:
Well, so again, I think if the question is, is it a cubicle slightly to the right or slightly to the left, I think that that's a situation where that very well could be de minimis.

[01:24:54] Speaker 05:
The cubicle versus office, would it exceed the de minimis threshold?

[01:25:00] Speaker 14:
I mean, it might say office, individual office.

[01:25:04] Speaker 14:
I think the context may matter, but it well could.

[01:25:07] Speaker 14:
It well could.

[01:25:07] Speaker 14:
I think that most- But it wouldn't categorically.

[01:25:11] Speaker 05:
it would not be enough to state a Title VII claim to say that because I'm a woman, I have to do my work in a cubicle.

[01:25:19] Speaker 05:
And if I were a man, and that's an intentional decision by the employer, we've put that requirement to, if I were a man, I could do it, I would have an office.

[01:25:30] Speaker 05:
Is that enough?

[01:25:32] Speaker 14:
You know, I do think that that would be enough to get you past 12b6.

[01:25:36] Speaker 14:
And then the context would more likely come in at the summary judgment standard.

[01:25:41] Speaker 14:
But I think that this is a perfect example of why moving incrementally.

[01:25:46] Speaker 05:
Why would context matter?

[01:25:47] Speaker 05:
At that point, you might have to prove discrimination.

[01:25:48] Speaker 05:
Not like the basis.

[01:25:49] Speaker 05:
Was it on the basis of objective characteristic?

[01:25:52] Speaker 05:
But why would you have to do anything more, even at the summary judgment stage, as to whether I have been discriminated against on the basis of a term, condition, or privilege of employment?

[01:26:00] Speaker 14:
Well, I mean, conceivably, and again, I think that this is very unlikely to actually occur, but conceivably, you could be put in an office that has no door and is immaterially different from a cubicle.

[01:26:18] Speaker 14:
I grant you that that would be a hard situation to imagine, but I think having a de minimis standard does kind of build in some room for those occurrences where the context kind of

[01:26:31] Speaker 14:
shifts, whether we think that this is really a nonconformist injury.

[01:26:36] Speaker 05:
Okay, so that would say, so your theory is, just to be crystal clear then, that Congress didn't mean it when it said

[01:26:45] Speaker 05:
No discrimination on the basis of terms, conditions, or privileges of employment based on a protected characteristic.

[01:26:51] Speaker 05:
What it meant was no big enough discrimination on a protected basis in your terms, conditions, and privileges of employment.

[01:27:01] Speaker 05:
That's just got to be what you mean.

[01:27:02] Speaker 05:
It just wasn't big enough difference.

[01:27:08] Speaker 14:
What we mean is that we think that Congress incorporated the usual de minimis threshold that applies to all statutes.

[01:27:15] Speaker 05:
Right.

[01:27:16] Speaker 05:
So it just wasn't big enough discrimination as to your term, condition or privilege of employment.

[01:27:21] Speaker 05:
Well, whether you want to, whether you want to... If my retirement benefit is reduced by one 20th of a penny a year, because I'm female, so that over the course I will end up at the end of the day with retirement benefit that is one to two cents less.

[01:27:39] Speaker 05:
the male employees, is that de minimis?

[01:27:44] Speaker 14:
It's conceivable that it would be de minimis.

[01:27:48] Speaker 14:
Again, I think you need to look at it in context.

[01:27:51] Speaker 14:
But what I would say is that this is why it is very crucial for the court to move incrementally and to adhere as closely as possible.

[01:27:58] Speaker 05:
Make sure we protect the ability to have different retirement benefits.

[01:28:04] Speaker 13:
Ms.

[01:28:05] Speaker 13:
Benzal, has any court taken a more plaintiff-friendly view of Title VII than you are articulating here today?

[01:28:15] Speaker 14:
No, Your Honor.

[01:28:16] Speaker 14:
I don't believe that any court has.

[01:28:18] Speaker 14:
I think that this is the most plaintiff-friendly standard.

[01:28:22] Speaker 13:
And even though hopefully we can all agree that any employer's intentional discrimination is worthy of our contempt,

[01:28:32] Speaker 13:
Most legislation is the product of compromise, correct?

[01:28:37] Speaker 14:
That's correct.

[01:28:38] Speaker 13:
And the Supreme Court is saying that title seven itself as an exception to the rule that most legislation is the product of compromise.

[01:28:49] Speaker 14:
I don't see title seven as being an exception to that.

[01:28:52] Speaker 14:
And indeed, the Supreme Court in cases like Weber has said otherwise.

[01:28:55] Speaker 14:
And I think that.

[01:28:58] Speaker 13:
So please finish.

[01:29:00] Speaker 14:
And I would just point out that the Supreme Court's case law in the hostile work environment context is, I think, an example of this, where the court has said that even though there are things that may occur in the workplace that we would all condemn in terms of conduct between supervisors and employees, those aren't necessarily actionable under the text of the statute.

[01:29:21] Speaker 14:
It's not because it's a policy reason we think that they should be occurring or that Congress thought they should be occurring.

[01:29:26] Speaker 14:
It's just, as you noted, Your Honor,

[01:29:28] Speaker 14:
The terms of the statute are not unlimited, and it was a product of compromise.

[01:29:33] Speaker 13:
What about stare decisis factors, which have gone unmentioned in most of the brief and in today's discussion?

[01:29:42] Speaker 13:
What is the standard we're supposed to apply as an en banc DC circuit with regard to whether to overturn a 30-year-old precedent?

[01:29:53] Speaker 14:
Well, your honor, as to stare decisis, the district would have no strenuous objection if this court were to say for stare decisis reasons that they are going to preserve the status quo.

[01:30:08] Speaker 14:
I mean, we briefed this case under Brown versus Brody and shifted our position only when explicitly requested to de novo interpret the statutory text.

[01:30:20] Speaker 14:
That's what I believe in the most recent

[01:30:23] Speaker 14:
in bank precedent this court has issued.

[01:30:26] Speaker 14:
It's a high standard for overruling stare decisis in the statutory context, but if a case is fundamentally flawed, I mean, that could be a circumstance.

[01:30:37] Speaker 14:
Again, the district isn't taking a position one way or the other, because again, prior to a very explicit directive from this court, we used Brown versus Brody the same as any other litigant would have.

[01:30:52] Speaker 13:
Right.

[01:30:53] Speaker 13:
And I guess I'm not blaming you for, for not, you know, you weren't you weren't asked to brief what our standards should be but I am just my last question here is, do you think we sit more like a common law court.

[01:31:11] Speaker 13:
deciding whether to overturn a common law precedent?

[01:31:15] Speaker 13:
Do you think we sit more like the Supreme Court deciding whether to overturn a statutory precedent?

[01:31:21] Speaker 13:
Do you think we sit, since we're on bunk, as basically a court that is almost acting as if the precedent doesn't matter at all so long as we think the precedent was fundamentally flawed?

[01:31:36] Speaker 13:
What kind of court do you think we are in terms of?

[01:31:40] Speaker 13:
what our standards should be.

[01:31:42] Speaker 14:
I think given the case law, it's somewhere in between.

[01:31:45] Speaker 14:
So this court has cited Supreme Court precedent on stare decisis, but then generally turns to qualify that there are some circumstances outside of the extraordinary circumstances that would qualify for the Supreme Court to disregard stare decisis that may be relevant

[01:32:06] Speaker 14:
among other things because the court sits in panels of three because other circuits may disagree with the approach taken by the circuit.

[01:32:15] Speaker 14:
Obviously, there's not a major disagreement here and it's certainly not the case in these circumstances that the majority of courts have said that lateral transfers are per se actionable.

[01:32:26] Speaker 14:
In fact, I'm not aware of a court that has said that, has gone that far to institute a per se rule.

[01:32:33] Speaker 14:
So the answer is it's,

[01:32:35] Speaker 14:
not quite like the Supreme Court, a little bit of a lower burden, but still fairly rigorous.

[01:32:46] Speaker 08:
Thanks.

[01:32:49] Speaker 08:
Could I take you back to the specific adjustment of Brown that you've asked for the second of year two?

[01:32:57] Speaker 08:
So suppose we were to clean it up just a little bit by saying that

[01:33:04] Speaker 08:
The tangibility element coming from L-earth isn't exactly right.

[01:33:11] Speaker 08:
The materiality requirement shouldn't be understood as a really high burden.

[01:33:18] Speaker 08:
It's just the opposite of, it just means non-diminimus.

[01:33:26] Speaker 08:
You asked for a categorical rule that transfers meet that requirement.

[01:33:37] Speaker 08:
So why would we do that?

[01:33:41] Speaker 08:
Why doesn't the cleanup I've described sort of permit the kinds of cases you want to permit and a categorical statement as to transfers

[01:33:54] Speaker 08:
is going to put a lot of pressure on a second order analytical question that Judge Malek's been asking about, which is what is a transfer?

[01:34:04] Speaker 08:
That's not a term that appears in Title VII and

[01:34:12] Speaker 08:
Not a question that has an obvious answer.

[01:34:15] Speaker 08:
So why would we sort of create that extra step?

[01:34:21] Speaker 08:
And then when we get the follow-on cases will be instead of just asking whether the harm was non-diminimous, we'll have to ask ourselves whether the shift from tools to sporting goods is a quote transfer, close quote.

[01:34:40] Speaker 08:
That seems unnecessary.

[01:34:43] Speaker 14:
Well, Your Honor, we think a clean rule for transfers would make this court's job in the mine run of cases easier.

[01:34:51] Speaker 14:
I mean, again, the transfer situation that this court has actually confronted are situations like the one in Brown versus Brody, where you're transferred from a division to a division.

[01:35:02] Speaker 14:
The divisions do completely different work, or from one state to another, as in Ortiz Diaz.

[01:35:07] Speaker 14:
That said, if the court wanted to proceed even more incrementally, I don't think that the district again would have a strenuous objection to that.

[01:35:17] Speaker 14:
The idea was simply by proposing a bit of a categorical approach, which this court has used from time to time, would make the job simpler.

[01:35:27] Speaker 14:
You wouldn't have to necessarily ask in context that de minimis question for a certain category of claims.

[01:35:33] Speaker 08:
Okay.

[01:35:34] Speaker 08:
Oh, sorry.

[01:35:34] Speaker 08:
Go ahead.

[01:35:35] Speaker 14:
No, but if the court disagrees and wants to move more incrementally again, no strenuous objection from the district.

[01:35:41] Speaker 08:
OK, thank you.

[01:35:45] Speaker 09:
Let me make sure my colleagues don't have additional questions for you, Ms.

[01:35:47] Speaker 09:
Fanzile.

[01:35:50] Speaker 09:
Thank you, Ms.

[01:35:50] Speaker 09:
Fanzile.

[01:35:51] Speaker 09:
I have a question.

[01:35:51] Speaker 09:
Oh, please, Judge Wilkins.

[01:35:56] Speaker 07:
Can you just explain exactly how, under these facts, chambers

[01:36:05] Speaker 07:
was a transfer.

[01:36:09] Speaker 07:
Because he said earlier, if I remember correctly, in response to questioning that while the employer can kind of define what a transfer is by the job description or the job title,

[01:36:32] Speaker 07:
So in this case, we know that this is a transfer because what chambers requested had a different job title.

[01:36:44] Speaker 07:
Is that how we know it was a transfer?

[01:36:46] Speaker 07:
I'm just trying to make sure I understand your theory here.

[01:36:50] Speaker 14:
That's correct, your honor.

[01:36:51] Speaker 14:
The district has a formal organizational structure in the child support services division where there are different units

[01:36:58] Speaker 14:
that do different things.

[01:36:59] Speaker 14:
Generally, in terms of our units or sections, you are hired into one or the other.

[01:37:03] Speaker 14:
That's a term of your employment.

[01:37:05] Speaker 14:
And so this transfer would have involved a relatively formal and permanent move from one unit to another to do a different type of

[01:37:19] Speaker 05:
I thought part of what was going on here was at least at one point was restructuring.

[01:37:24] Speaker 05:
And sometimes job titles change in restructurings, even if what you do, where you do it, who your supervisor is, and when you do it don't change.

[01:37:34] Speaker 05:
So I'm curious about your answer that it's because her job title could change or is it organizational chart?

[01:37:41] Speaker 14:
No, Your Honor, it's more in the nature of the organizational chart.

[01:37:44] Speaker 14:
As we said in our brief, we don't think a

[01:37:46] Speaker 14:
nominal change in title if the organization reorganizes is going to be sufficient.

[01:37:53] Speaker 14:
It's that formal change in position.

[01:37:55] Speaker 14:
And here accompanied by doing a different kind of work.

[01:38:02] Speaker 05:
To job duties, changing what work you're doing, your job duties is pretty important to the financial transform.

[01:38:10] Speaker 14:
If it is a day in day out job duties to which you were formerly

[01:38:14] Speaker 14:
assigned?

[01:38:16] Speaker 14:
Yes.

[01:38:17] Speaker 14:
If it is, again, going back to the big box store hypothetical where you're working in sporting goods or not, we think that that is more the nature of a condition than a term of employment.

[01:38:27] Speaker 05:
Well, once every three years, female employees also have to clean up the coffee room.

[01:38:35] Speaker 05:
Men never do.

[01:38:37] Speaker 05:
So it's not permanent.

[01:38:39] Speaker 05:
It's not every day.

[01:38:43] Speaker 05:
But it happens, and it happens only to women.

[01:38:45] Speaker 05:
And there's a memo to the file, as Judge Tatel would say, that says it's because they're women.

[01:38:50] Speaker 05:
You think women should clean.

[01:38:54] Speaker 14:
Your Honor, that would be analyzed not as a per se rule, but as a condition of employment.

[01:38:59] Speaker 14:
We don't think that that is a change in the position.

[01:39:01] Speaker 14:
It's a change in the job duties.

[01:39:03] Speaker 14:
But that may well be sufficiently pervasive or severe, I think, again, using the

[01:39:09] Speaker 14:
the hostile work environment test.

[01:39:11] Speaker 14:
That wouldn't fall into de minimis exception either.

[01:39:14] Speaker 14:
Well, if it's severe or pervasive, it's going to be more than de minimis.

[01:39:18] Speaker 14:
My hypothetical wasn't severe or pervasive.

[01:39:23] Speaker 14:
Well, we know if it's in the hostile work environment context, it has to at least be severe or pervasive.

[01:39:30] Speaker 14:
I'm not doing it.

[01:39:33] Speaker 05:
There's one thing, and it's every three years you have to clean up the bathroom.

[01:39:40] Speaker 14:
That's a traditional job duty.

[01:39:44] Speaker 14:
Again, Your Honor, if in the scope of your duties, that is de minimis.

[01:39:49] Speaker 14:
And it may well be a jury question as to whether that is.

[01:39:55] Speaker 05:
De minimis is a jury question?

[01:39:57] Speaker 14:
Not always.

[01:39:58] Speaker 14:
But I mean, like any of these standards, like severe or pervasive, I mean, they're going to be close cases.

[01:40:03] Speaker 14:
And if case is sufficiently close, the reasonable people

[01:40:07] Speaker 14:
reasonable juries could disagree, then it would.

[01:40:16] Speaker 09:
Okay.

[01:40:16] Speaker 09:
Thank you, Ms.

[01:40:16] Speaker 09:
Fanzile.

[01:40:17] Speaker 09:
We'll hear from the court appointed amicus now, Mr. Schaaf.

[01:40:22] Speaker 01:
Thank you, and may I please the court.

[01:40:24] Speaker 01:
The court would adhere to Brown's subtle rule that plaintiffs suing over lateral transfers must show material objective harm.

[01:40:31] Speaker 01:
And the court should reject requests to adopt a position that no court anywhere has embraced.

[01:40:37] Speaker 01:
We think stare decisis militates strongly against this result.

[01:40:41] Speaker 01:
The answer to Judge Walker's question is that the general standard this court applies is whether an existing precedent is fundamentally flawed.

[01:40:48] Speaker 01:
But I think the critical mass case shows that in the context of a case like this, where you have the uniform view of the circuit and decades of statutory precedent,

[01:40:59] Speaker 01:
It's just not fundamentally flawed.

[01:41:02] Speaker 01:
But I sort of want to go straight to the merits because I think we've got a pretty fundamental difference with Mr. Wolfman about what this case is about.

[01:41:10] Speaker 01:
I mean, his view is this is all about the phrase terms, conditions, or privileges.

[01:41:14] Speaker 01:
But my view is that instead it's really about the phrase otherwise discriminate against and the Supreme Court's interpretations of that phrase in Harris and Meritor and its interpretation of the phrase discriminate against in a way

[01:41:28] Speaker 01:
You know, those cases adopt a threshold level of harm that is almost exactly like Brown's.

[01:41:34] Speaker 01:
And, you know, I have not heard from the other side, either in their briefs or today, any textual way to square their position with the Supreme Court's interpretation of those cases.

[01:41:45] Speaker 01:
So, you know, I think when we've gotten this type of subtle statutory precedent, you know, that really should be it.

[01:41:52] Speaker 01:
And the other thing I'll say about white is it's not just that white interpreted

[01:41:55] Speaker 01:
a materially adverse standard that is very similar to Brown.

[01:41:59] Speaker 01:
But it actually talks about reassignments specifically.

[01:42:02] Speaker 01:
And this, I think, goes to the district position that used to have some categorical rule of the letter of transfer.

[01:42:07] Speaker 01:
I mean, what White says is reassignments are not automatically actionable under a materially adverse standard.

[01:42:16] Speaker 12:
If a person is denied a transfer because of his race,

[01:42:25] Speaker 12:
that would have gone, if a person is denied a transfer because he's African-American and that transfer would have gone to a white person, isn't that person discriminated against?

[01:42:37] Speaker 01:
So, I mean, we don't think so within the meaning of the statute.

[01:42:40] Speaker 12:
But to stick with the language, this is the language in the statute.

[01:42:45] Speaker 12:
Tell me why that's not discrimination against him.

[01:42:50] Speaker 01:
Well, I think there's three textual arguments.

[01:42:52] Speaker 01:
So the first textual argument, you've heard two of them.

[01:42:55] Speaker 01:
The first is that the phrase discriminate against means to treat work in a matter that injured, like the Supreme Court said in white.

[01:43:01] Speaker 12:
Wait, what did you, I'm sorry.

[01:43:02] Speaker 12:
I didn't, I'm just sorry.

[01:43:03] Speaker 12:
I didn't hear what you said.

[01:43:04] Speaker 12:
It's in a matter that what?

[01:43:06] Speaker 01:
In a manner that injured.

[01:43:08] Speaker 01:
So that's what the Supreme Court said in white.

[01:43:10] Speaker 01:
But that's not in the statute.

[01:43:12] Speaker 01:
No, but I think the court should start.

[01:43:14] Speaker 12:
I was asking you about the statutory phrase.

[01:43:17] Speaker 12:
The only phrase we have is,

[01:43:18] Speaker 12:
discriminate against.

[01:43:19] Speaker 12:
It doesn't say discriminate against in a way that endangers a test, discriminate against.

[01:43:24] Speaker 12:
So, I mean, maybe there's a good answer to this, but I didn't see it in your brief.

[01:43:28] Speaker 12:
Why isn't that person in my hypothetical discriminated against because a white person would have gotten that job?

[01:43:36] Speaker 01:
So I mean, within the meaning of the statute, the answer is, one, the way the Supreme Court has interpreted those words, two, the de minimis backdrop.

[01:43:47] Speaker 12:
Has the Supreme Court said that the denial of a lateral transfer based on race is not discrimination against?

[01:43:52] Speaker 01:
The Supreme Court hasn't talked about lateral transfers under the discrimination provisions.

[01:43:58] Speaker 01:
But actually, I mean, it has said that

[01:44:00] Speaker 01:
But in White, though, it said that a reassignment of job duties standing alone does not constitute discriminating against someone under the anti-retaliation provision, which I think gets awfully close.

[01:44:13] Speaker 12:
We know from White that anti-retaliation is different from discrimination.

[01:44:19] Speaker 01:
It's different, but not in a way that helps.

[01:44:21] Speaker 12:
Statutory structure.

[01:44:22] Speaker 01:
Well, it's different, but I think not in a way that helps the other side here, because the difference is this limiting phrase, terms, conditions, or privileges of employment

[01:44:30] Speaker 01:
is absent.

[01:44:31] Speaker 01:
And so I don't think there's any alternative to the other side view, but to say those same words mean something different in 703A1 than they mean in 704.

[01:44:41] Speaker 01:
And I think that is a grave textual problem for them that I think frankly just makes it impossible for them to meet the fundamentally flawed standards that this court's case is set.

[01:44:53] Speaker 01:
The third argument I just want to get on the table in terms of the text

[01:44:56] Speaker 01:
Is the juice and generous canon this phrase we're interpreting here otherwise discriminate against is a residual and what that can it teaches is that we presume that incorporates things of the same basic type as the things that were enumerated.

[01:45:09] Speaker 01:
So to fail or refuse to hire or to discharge and, you know, those things we think are material and objective harm.

[01:45:16] Speaker 01:
And so the natural way to interpret this residual is covering things of the same basic type.

[01:45:21] Speaker 01:
And, you know, again, the court isn't operating on a blank slate here.

[01:45:25] Speaker 01:
You know, this is the interpretation that the Supreme Court arrived at in the Harris case.

[01:45:30] Speaker 01:
Harris says expressly there's going to be some harassment under Section 703A1 that affects terms and conditions of employment, but not to a sufficient degree so as to implicate Title VII.

[01:45:42] Speaker 01:
And there's a lot of discussion about whether the right standard is material or de minimis and what those mean.

[01:45:48] Speaker 01:
But my fundamental submission of the court is once you're in the universe of arguing about which of those standards is the right one, you have gone far outside anything that could justify

[01:45:58] Speaker 01:
getting rid of two decades of statutory precedents where, again, all the circuits agree.

[01:46:04] Speaker 09:
If discriminate against means treat deferentially and it includes, let's just, I'm going to go with you on your interpretation that it includes some kind of injury component just for purposes of this question.

[01:46:20] Speaker 09:
So how is it not

[01:46:23] Speaker 09:
discriminating against when you've been denied a transfer that someone else would have gotten if they were a different gender or a different sex or different race.

[01:46:36] Speaker 01:
Well, so I think what White and Bostock say is that you look for injury.

[01:46:40] Speaker 01:
And if that other position would have been objectively identical, you haven't, I think, been injured.

[01:46:46] Speaker 01:
But I also don't want to push too hard on that point, because I think you need the other parts of our statutory argument, the de minimis backdrop principle and the just and generous canon, paired with what the Supreme Court has said about these terms, to sort of get all the way to the standard that this court applied to Brown.

[01:47:06] Speaker 08:
Can I take you into the weeds of Brown for a minute and just figure out what parts of it you're trying to preserve and maybe what parts of it you're not?

[01:47:19] Speaker 08:
So you could conceivably tease out of Brown three different possible elements, materiality, objectivity, and tangibility.

[01:47:35] Speaker 08:
And you sort of quietly toss tangibility over, seems to me like it's the weakest of the three.

[01:47:48] Speaker 08:
What difference, if any, do you understand between materiality and objectivity?

[01:47:54] Speaker 08:
Do you think both are important and are they doing independent work?

[01:48:00] Speaker 01:
Yes, I think both material and objective are important and they do independent work, you know, material I think is understood as a sort of significant threshold and, you know, objective differentiates between, you know, objective and subjective.

[01:48:15] Speaker 01:
But I, you know, on the tangibility point, I just don't, I don't want to be quiet about it because I want the court to be sort of clear on what I think.

[01:48:22] Speaker 01:
The way I would read tangibility is

[01:48:25] Speaker 01:
just whatever meaning it has is consumed by objective and material when you put those two things together.

[01:48:33] Speaker 01:
And the reason I say that is twofold.

[01:48:36] Speaker 01:
One is that the Supreme Court has said, actually before Brown, that there's no tangibility requirement if what you mean is sort of pocketbook farms.

[01:48:47] Speaker 01:
And this court, after Brown,

[01:48:50] Speaker 01:
in cases like Friedman and Ginger and Holcomb, these are things about their work rules and work responsibilities, has found those cases to satisfy Brown, even though there wasn't a pecuniary pocketbook arm.

[01:49:04] Speaker 01:
So I think that's just accurately capturing the place where this court's precedent is and really has to be.

[01:49:11] Speaker 08:
I understand.

[01:49:13] Speaker 08:
So if materiality, your basic argument is

[01:49:17] Speaker 08:
That means non de minimis, I get that.

[01:49:21] Speaker 08:
What does objectivity get beyond materiality in that sense and where does it come from?

[01:49:31] Speaker 01:
Well, so I think, you know, objective comes, what objective means is that it relates to, you know, objective facts in the world and not just someone's preferences.

[01:49:41] Speaker 01:
You know, the fact that Chambers here, for example, had a preference to be in the intake unit

[01:49:47] Speaker 01:
and not the interstate unit isn't enough.

[01:49:49] Speaker 01:
And, you know, in terms of where it comes from, I think the first answer is, you know, it comes from Harris and Meritor and White, all of which require, you know, a sort of showing of objective harm interpreting identical text.

[01:50:05] Speaker 01:
And, you know, in terms of, you know, where that in turn comes from, I think it is, again, a combination of the de minimis background principle plus the structural inference that comes from the Adjusum Generis canon.

[01:50:18] Speaker 01:
Thank you.

[01:50:22] Speaker 05:
Where does the statute make the employee's motivation relevant rather than the whole statute 703A1?

[01:50:30] Speaker 05:
Where does it make that relevant rather than the employer's motivation?

[01:50:36] Speaker 05:
And to give you a concrete example, you talked about the, I'm in sporting goods, but I'd rather be in power tools.

[01:50:45] Speaker 05:
And that's my preference, whatever reason.

[01:50:51] Speaker 05:
An employer says women can't do power tools.

[01:50:54] Speaker 05:
That's a high testosterone area.

[01:50:56] Speaker 05:
Men won't buy power tools for women.

[01:50:58] Speaker 05:
They won't trust women as knowing anything about power tools.

[01:51:01] Speaker 05:
So while y'all rotate around on the floor as part of your job description, you, because you're a woman, you're not going to power tools.

[01:51:11] Speaker 05:
Why does whether that's prohibited by the plain text of 703A1 turn on whether she wanted to go there because of career advancement or because she really likes power tools?

[01:51:23] Speaker 01:
Well, so I think, you know, the short answer is the Supreme Court cases have both and all interpreted

[01:51:29] Speaker 01:
this identical text to require an objective showing.

[01:51:33] Speaker 01:
So, for example, in Harris, it is not sufficient to show that a woman subjectively feels that conduct is harassing, it's got to be objective.

[01:51:42] Speaker 01:
And similarly, in White... But we're talking now about a term, condition, or privilege of employment.

[01:51:47] Speaker 05:
That is what my job is.

[01:51:50] Speaker 05:
right, what I'm doing today or this week or this month, which was, I think, is different in the hostile working environment cases because the assumption there is that until you have a sufficient accumulation of actions, it doesn't yet affect your terms, conditions, or privileges of employment.

[01:52:10] Speaker 05:
All right, so that's why that was different.

[01:52:12] Speaker 05:
But now we're talking about we have

[01:52:15] Speaker 05:
express evidence, the decision as to what your job duties are this month is based on your gender, a gender stereotype.

[01:52:29] Speaker 05:
And you're saying that still, we still don't know that 703A1 prohibits that until we ask about why she wanted the position.

[01:52:38] Speaker 01:
Right.

[01:52:38] Speaker 01:
So, I mean, I do have to quibble, I think, with the reading of Harris, because I think what Harris says is that you are going to have something that could be a change in conditions of employment, but unless it sufficiently affects the employees so as to implicate Title VII purposes, then, you know, it's not actionable.

[01:52:55] Speaker 05:
Eliminating gender stereotypes and depriving me of a work opportunity because my sex is not what 703A1 is aimed at.

[01:53:10] Speaker 01:
No, so let me be very clear.

[01:53:12] Speaker 01:
Depriving you of work opportunities is absolutely what 703A1 is about.

[01:53:16] Speaker 01:
And I think this is an important point on some of the hypotheticals you hear about what if you've got the denial of a transfer that's expressly based on race, because you know there's this memo in the file.

[01:53:28] Speaker 01:
And I think most of those hypotheticals are going to be taken care of by this court's decision in Ortiz Diaz, which says that if you want a transfer, and you need that transfer, you say, and you can show this by evidence,

[01:53:40] Speaker 01:
to get away from a supervisor who is going to stifle your career because they are racist and sexist, then that is actionable.

[01:53:47] Speaker 05:
No, but in my hypothetical, we can change it to race if you want to change it to race.

[01:53:51] Speaker 05:
And if it is, Black people can't do power tools.

[01:53:58] Speaker 05:
We don't think for whatever biased reason, we don't think they're capable of selling power tools.

[01:54:08] Speaker 05:
And the reason the employee, instead of, you know, for the same reason I said, based on sex, I'll change it to based on race if you want, is I actually really love power tools.

[01:54:18] Speaker 05:
I love working with power tools.

[01:54:19] Speaker 05:
And you're saying that is not prohibited by 703A1.

[01:54:22] Speaker 05:
Black people can't sell power tools in my store because I don't think black people are capable of that activity.

[01:54:29] Speaker 01:
So I think the answer is, if that's all you've got, and you've got the existence of, say, segregation, then that is not enough without more.

[01:54:38] Speaker 01:
But usually, you will have the more, because the more is showing up.

[01:54:42] Speaker 05:
Yeah, but if you don't have more, what I have in this case is exactly what I've told you, whether you want to do it based on sex or based on race.

[01:54:48] Speaker 05:
And that is a desire by an employee.

[01:54:50] Speaker 05:
Pay is going to stay the same.

[01:54:52] Speaker 05:
Hours are going to stay the same.

[01:54:54] Speaker 05:
but what I'm gonna be selling, whether it's of interest to me, something I really am passionate about.

[01:55:00] Speaker 05:
And just to be crystal clear, your reading of 703A1 is that we can have the most malevolent, intentional, readily documented, stereotypical discrimination by the employer and title 703A1 says, not good enough, I need to know why the employee wanted that job.

[01:55:23] Speaker 05:
You have to have both sides.

[01:55:25] Speaker 01:
That's why I thought you said we can't just... Yes, you have to show objective material impact on your work environment or your opportunity to advance or things like that.

[01:55:37] Speaker 05:
But let me give another reason... And what job you're doing is that work environment?

[01:55:41] Speaker 01:
Well, it could be.

[01:55:42] Speaker 01:
So, for example, in the Holcomb case... No, no, in my hypothetical.

[01:55:46] Speaker 05:
I just want to stick with my hypothetical.

[01:55:48] Speaker 05:
That one would not be.

[01:55:49] Speaker 05:
You're saying that is not actual under Title VII.

[01:55:52] Speaker 01:
So if the supervisory level and burdens of work and all of that are all the same, then that without more is not actionable.

[01:56:02] Speaker 01:
But let me try to answer this way.

[01:56:04] Speaker 01:
I don't think you should be surprised by that because in Section 703A2, Congress talked about segregation, which is one of the core evils that Title VII was

[01:56:14] Speaker 01:
enacted to prevent.

[01:56:16] Speaker 01:
And there, if you want to plead a cause of action, you have to show that you were adversely affected by the segregation.

[01:56:24] Speaker 01:
It's not just enough to show the segregation in the ether.

[01:56:27] Speaker 01:
And another place to see this is, this isn't a Title VII case, but the Virginia Military Institute case in the Supreme Court, it's about the Equal Protection Clause.

[01:56:35] Speaker 01:
You had this separate institution for women that Virginia created.

[01:56:39] Speaker 01:
And Justice Ginsburg there didn't say the creation of this separate institution

[01:56:44] Speaker 01:
per se violates equal protection laws, she went through and showed as a matter of fact that that separate institution didn't provide equal educational opportunities, didn't provide the same quality of education.

[01:56:56] Speaker 01:
And our fundamental submission here is that it is the same under Section 703A1.

[01:57:02] Speaker 09:
So can I say on the A2 comparison,

[01:57:05] Speaker 09:
The position that the United States takes today is that for disparate treatment purposes, A2 doesn't cover anything that A1 doesn't already cover.

[01:57:13] Speaker 09:
If that's true, then the fact that for a segregation hypothetical, you need an adverse effect under A2 wouldn't matter because you could still get to it under A1, right?

[01:57:22] Speaker 01:
So that's what I think shows is sort of so odd about the other side's interpretation.

[01:57:26] Speaker 01:
You know, they read everything to be actionable under Section 703A1, even segregation that we know Congress focused on in 703A2 and still required an adverse effect.

[01:57:38] Speaker 09:
Segregation is not actionable under A1?

[01:57:42] Speaker 01:
So, I mean, it is if you can show a sufficient level of harm, just like, you know, in the Virginia Military Institute case, like it will, in practice, it typically is going to be actionable on a couple of different theories.

[01:57:57] Speaker 01:
One is the Ortiz-Diaz theory we've talked about that, you know, this person who's segregating you is also going to squelch your career advancement.

[01:58:04] Speaker 01:
Second theory that's gonna be available is that you're just preventing people from sorting into where they fit best.

[01:58:10] Speaker 01:
So the woman who's like much better at selling power tools can't do that.

[01:58:14] Speaker 01:
And a third is that we know as a factual matter that when you have segregated workplaces and whether that's by race or gender, the workplace that becomes feminized, typically the pay is gonna be less and the opportunities for advancement are gonna be less.

[01:58:30] Speaker 01:
And the basic point is you just need to show that as a factual matter, and it's not presumed.

[01:58:36] Speaker 05:
We presume separate is still legal under Title VII.

[01:58:41] Speaker 01:
I mean, that's, to be totally frank, why I gave the example of the Virginia Military Institute case.

[01:58:47] Speaker 01:
I mean, that would have been a much broader way.

[01:58:48] Speaker 16:
But Mr. Schaff, the Virginia Military Institute case is a very, very different case in the sense that there is the backdrop was some single sex education might be

[01:59:01] Speaker 16:
defensible if it really were materially equal.

[01:59:04] Speaker 16:
And it implicates the nature of developing an entire institution as opposed to the treatment of one person.

[01:59:13] Speaker 16:
So if you have a presumption that single sex educational institutions might be permissible, you're not going to rule out separation.

[01:59:22] Speaker 16:
Whereas in the employment, I don't think anybody's ever argued that a single sex place of employment or a

[01:59:31] Speaker 16:
place of employment that was racially discriminatory under Title VII would be permissible as somehow fulfilling some employment value.

[01:59:39] Speaker 16:
So it's just a really different, a very different context.

[01:59:43] Speaker 16:
I just don't see that as supporting some threshold level of harm under Title VII.

[01:59:50] Speaker 01:
Well, I think you can find examples that actually fit that pretty well.

[01:59:52] Speaker 01:
So one of the examples given in, I think, the United States brief is

[01:59:57] Speaker 01:
requirements that men and women have different uniforms.

[02:00:02] Speaker 01:
And, you know, Congress under Section 703A2 clearly didn't think that was supposed to be actionable unless you could show an adverse effect on your employment opportunities.

[02:00:12] Speaker 01:
But nonetheless, the position that Chambers advocates here would make that actionable under Section 703A1.

[02:00:18] Speaker 01:
And, you know, our submission is that as quite a strange

[02:00:21] Speaker 01:
results.

[02:00:21] Speaker 01:
But something we haven't talked about, at least in my time, is what's on the other side of the balance.

[02:00:28] Speaker 01:
And we agree with the district that there are significant interests, not in approving discriminatory conduct and saying any amount of discrimination is OK.

[02:00:39] Speaker 01:
But when we're talking about the scope of Title VII's cause of action, then there are good reasons to do what the Supreme Court has said and separate significant from trivial harms.

[02:00:49] Speaker 01:
you know, avoiding a flood of cases where there's no genuine harm to remedy, avoiding the need to sort of determine someone's subjective preferences.

[02:00:58] Speaker 01:
I mean, we heard from Mr. Wolfman that if Chambers prevails on remand, her damages are going to have to be based on, you know, her sort of subjective feelings about how she was treated.

[02:01:07] Speaker 01:
And then, you know, you've got the consideration that Ms.

[02:01:11] Speaker 01:
Van Zyl laid out,

[02:01:12] Speaker 01:
present in the legislative history about not want, on the one hand, you know, Congress being very concerned with eliminating harmful discrimination, but on the other hand, not wanting to overburden employers and unduly interfere where there was no genuine harm to remedy.

[02:01:26] Speaker 05:
And, you know, those are- And denying someone the opportunity to do work that they're really, really interested in and really enjoy is not, is still, is a trivial.

[02:01:39] Speaker 01:
Well, so I think this is this is where the Supreme Court has been and saying that you should strike a sort of middle path here.

[02:01:46] Speaker 01:
I mean, under Harris, you can have someone

[02:01:49] Speaker 01:
expressly harass someone and say, you know, I am harassing you because of your sex, but unless you can show that's severe or pervasive, it's not actionable.

[02:01:58] Speaker 01:
You know, under section 7084, you can have someone say, you know, I am expressly going to, you know, to use one of the district hypotheticals, take all of your staplers.

[02:02:06] Speaker 05:
So the answer to my question is, under your definition of what counts as trivial or de minimis, that includes depriving people of the opportunity to do the work

[02:02:18] Speaker 05:
that they're most passionate about or most interested in doing?

[02:02:22] Speaker 05:
I'm just asking that question.

[02:02:24] Speaker 01:
Yes?

[02:02:25] Speaker 05:
So I think if they cannot show an objective material difference between the position they most want to do, and I don't get to do it because of express overt racial or gender stereotype.

[02:02:39] Speaker 01:
And I don't want to repeat myself, but the answer is yes, but you will often be able to make, you know, the Ortiz Diaz type showing or, you know, the Haas environment type showing, but yes.

[02:02:59] Speaker 01:
So maybe let me talk a minute about the district sort of middle ground position and what I think is wrong with it.

[02:03:05] Speaker 01:
I mean, on the one hand, you know, it's narrower than the position you've heard from the other side.

[02:03:09] Speaker 01:
And so you might think is sort of preferable in that regard.

[02:03:12] Speaker 01:
But on the other, I think you can see it as sort of the worst of all possible worlds where you are overthrowing decades of precedent in favor of this categorical rule that sort of comes from nowhere and is going to lead to a new cottage industry of

[02:03:26] Speaker 01:
litigation over what constitutes a transfer or not.

[02:03:30] Speaker 01:
Is the one hour reassignment to sporting goods a transfer and how do we tell?

[02:03:37] Speaker 01:
And also that it is inconsistent that bright line rule they seek to draw with white in at least two different ways.

[02:03:45] Speaker 01:
First, what white says.

[02:03:47] Speaker 05:
If a supervisor were to bring in donuts on Fridays.

[02:03:52] Speaker 05:
and put them out on the table and hang a sign over them that says, for white employees only.

[02:03:59] Speaker 05:
Is that injury under your definition, or that's trivial?

[02:04:05] Speaker 01:
I think that does not meet this course threshold.

[02:04:09] Speaker 01:
It's set in Brown.

[02:04:10] Speaker 01:
But I just have to keep my running objective.

[02:04:12] Speaker 05:
I get that it would meet Brown.

[02:04:13] Speaker 05:
I'm asking you whether it meets 703A1, your requirement of a non-trivial injury.

[02:04:22] Speaker 01:
Right, so I don't think it would satisfy the Supreme Court's test in whites, which we think is very similar.

[02:04:28] Speaker 01:
Is it a trivial injury?

[02:04:33] Speaker 01:
So the donuts, let me be very clear, the donuts alone is a trivial injury.

[02:04:37] Speaker 05:
The donuts with a sign that says for whites only.

[02:04:39] Speaker 05:
I'm not going to let you separate the two of them.

[02:04:41] Speaker 05:
Is that a trivial injury or not?

[02:04:44] Speaker 01:
So I think if you can show that the for whites only sign is, you know,

[02:04:49] Speaker 01:
part of a employment atmosphere that is preventing you from advancing?

[02:04:53] Speaker 05:
It's not part of anything else.

[02:04:56] Speaker 05:
I'm not trying to put together a hostile work environment plan here.

[02:05:00] Speaker 05:
I'm trying to put together.

[02:05:02] Speaker 05:
I'm just asking a question.

[02:05:03] Speaker 05:
It might be sometimes rules have hard answers.

[02:05:05] Speaker 05:
So I'm just asking to try to get to what we mean by de minimis, trivial, intentional discrimination.

[02:05:16] Speaker 01:
Right.

[02:05:16] Speaker 01:
So I think just the, you know, the statement that you are depriving someone of donuts because of race is not enough.

[02:05:23] Speaker 01:
I think that is a necessary consequence of Brown's rule as it's a necessary consequence of Harris and Meritor and White.

[02:05:31] Speaker 01:
But, you know, I do think the Ortiz Diaz theory.

[02:05:34] Speaker 05:
If the employer has two water fountains, they both function equally.

[02:05:40] Speaker 05:
Water's the same temperature, the same purification, and they put a sign up that says one for whites only, one for non-whites.

[02:05:48] Speaker 05:
And there's nothing else that happens there that suggests a racially hostile working environment.

[02:05:55] Speaker 05:
But Title VII says that's OK.

[02:05:57] Speaker 05:
703A1.

[02:05:58] Speaker 01:
Your Honor, we know very explicitly what Congress thought about that, because that is segregation.

[02:06:04] Speaker 01:
And it's covered under 703A2, which requires a showing of an adverse effect.

[02:06:10] Speaker 05:
Yes, one of the questions I have.

[02:06:15] Speaker 05:
The sign like that is not an adverse effect in its own right.

[02:06:18] Speaker 01:
I think if the sign alone were an adverse effect, if the act of segregation alone were an adverse effect, then you would not have any work for that other language in Section 703A2 to do.

[02:06:32] Speaker 01:
But to be very clear, people generally are going to be able to make the type of showing

[02:06:37] Speaker 01:
from Ortiz Diaz or the hostile work environment claim from Harris as a factual matter.

[02:06:43] Speaker 01:
And, you know, our fundamental submission is that what Brown really does is it just makes you make that showing on the fact.

[02:06:51] Speaker 01:
And, you know, the reason it does it is, you know, so, for example, in this case, if you sort of tweak the fact a little bit,

[02:06:58] Speaker 01:
where the district has two groups of people who do interstate cases, they've got group A and group B, and you want a transfer from A to B, even though they're objectively identical, that's not actionable, not because we don't think that doing that for discriminatory reasons would be okay, but because of the reality that lawsuits impose significant costs.

[02:07:23] Speaker 01:
And that is why, again, whites said it's important to separate significant from trivial harm.

[02:07:28] Speaker 03:
So I think mixing up these workplace cases and discreet acts presents a problem.

[02:07:38] Speaker 03:
And everyone seems to resist Judge Tatel's effort, including the vigorous argument by the district government, that the Supreme Court had understood harm from discrimination

[02:07:56] Speaker 03:
to be harm in and of itself, separate but equal, harm.

[02:08:05] Speaker 03:
And you can fight as to the evidence that was presented, but Dr. Clark's testimony was before the Supreme Court and it ruled.

[02:08:16] Speaker 03:
And then 1964, Congress passes the statute.

[02:08:22] Speaker 03:
So one of the things about your argument that troubles me maybe not as much as the district governments is the precedent we have is all based on the courts trying to narrow, in my view, what Congress had in mind in 64.

[02:08:42] Speaker 03:
We don't want discrimination in the workplace.

[02:08:47] Speaker 03:
So when Judge Millett's questioned about two water fountains, I don't know how you say that isn't discrimination, that has a harm.

[02:08:57] Speaker 03:
It may be a psychological harm, it may be a developmental harm, but it's a harm.

[02:09:04] Speaker 03:
And maybe everybody here is too young to remember those days, and maybe they don't teach it because it's too recent in history.

[02:09:13] Speaker 03:
But being discriminated against

[02:09:17] Speaker 03:
is a harm in and of itself.

[02:09:20] Speaker 03:
And that's, I thought, what Congress was trying to get at.

[02:09:23] Speaker 03:
And we don't need discrimination in the workplace.

[02:09:27] Speaker 03:
And that's not what our country stands for.

[02:09:29] Speaker 03:
And both the United States and the District of Columbia and all their job applications say, you know, we do not discriminate.

[02:09:39] Speaker 03:
So just like being a little bit pregnant is a term that used to be thrown around sewing.

[02:09:47] Speaker 03:
being a little discriminated against.

[02:09:50] Speaker 03:
It just doesn't fit with the context, it seems to me, in which Congress was acting.

[02:09:57] Speaker 03:
And Judge Tatel gave everybody tons of time to point to legislative history or anything.

[02:10:03] Speaker 03:
We've had this de minimis rule.

[02:10:05] Speaker 03:
Congress says enough.

[02:10:08] Speaker 03:
We don't want discrimination in the workplace.

[02:10:11] Speaker 03:
So look at the discrete act.

[02:10:14] Speaker 03:
And that's what we're focused with here.

[02:10:17] Speaker 03:
And Brown was one of those cases that tried to make it more and more difficult.

[02:10:22] Speaker 03:
Ortiz Diaz, as you know, did not originally come out the way it ultimately came out.

[02:10:29] Speaker 03:
So let's be clear, Brown v. Brody has had an impact on what's happening in these cases.

[02:10:37] Speaker 03:
And the district obviously has thrown all that aside, saying it's too burdensome for us to defend these cases.

[02:10:45] Speaker 03:
Well, that's true what they said about sexual harassment too.

[02:10:50] Speaker 03:
So I guess I'm interested in that notion that if you look at the language in the statute, if you look at the legislative history, if you look at the historical context, why isn't the fact that Judge Millett has been posing in hypothetical after hypothetical enough?

[02:11:14] Speaker 03:
You may lose when you get to the trier of fact, but at least you get the opportunity to get to the trier of fact.

[02:11:23] Speaker 03:
And it may be a burden on the district government defending these cases, but there are certain values that this country has and the Supreme Court has embraced.

[02:11:37] Speaker 01:
So I think, you know, the short answer is that when there's obviously a lot in there, but when the Supreme Court has interpreted, you know, these provisions and that we feel it's important in doing this.

[02:11:48] Speaker 01:
to chart a middle path, because there are important interests in both sides, then the appropriate thing for this court to do, and the appropriate thing that Brown does, is to chart that same middle path.

[02:12:00] Speaker 03:
So what case on a discrete act of differential treatment on the basis of one of these protected factors is your strongest Supreme Court case?

[02:12:13] Speaker 01:
Well, so I think, I mean, a couple answers.

[02:12:16] Speaker 01:
I think the best on short, I think white is about a discrete.

[02:12:24] Speaker 03:
Act case.

[02:12:26] Speaker 03:
All right.

[02:12:26] Speaker 03:
And we all know that.

[02:12:29] Speaker 03:
And that's why I'm trying to get you to focus on what we're dealing with here.

[02:12:34] Speaker 01:
Well, so I respectfully have to disagree on White, and then I'll go to some more examples and points.

[02:12:39] Speaker 01:
You think it was a discrete act, Ken?

[02:12:42] Speaker 01:
White talks about reassignments of job duties.

[02:12:45] Speaker 01:
I think that is a discrete act in the way you'd ordinarily understand it.

[02:12:50] Speaker 01:
You have always been on the shuttle crew, and you are reassigned to the forklift crew.

[02:12:59] Speaker 01:
That is a discrete act of reassignment, at least in some sense.

[02:13:04] Speaker 01:
And so I don't see any basis for distinguishing that case from this one on the text.

[02:13:10] Speaker 01:
And I would also go back to Harris.

[02:13:12] Speaker 01:
I mean, I hear you saying, and I think it's right, that there was not a sort of discrete act at issue in that case, but that case also reflects an interpretation of Title VII that says, you know, harassment, even if it affects terms or conditions of employment in some sense, is actionable only if it

[02:13:29] Speaker 01:
sufficiently does so and this is a quote so as to affect title seven purposes, and you know that I think really goes to some of the questions and comments that you've you've major honor where, you know,

[02:13:42] Speaker 01:
about the backdrop of Title VII and its history and purposes, almost everything you said would have been true in Harris as well.

[02:13:51] Speaker 01:
But nonetheless, the Supreme Court carved out some harassing conduct as outside of Title VII.

[02:13:57] Speaker 01:
And Justice Ginsburg, who did not slight the purposes of Title VII, both joined that opinion and wrote her own concurrence

[02:14:05] Speaker 01:
to emphasize that in her view, the dominant consideration should be whether harassment, quote, unreasonably interfered with an employee's ability to do their job.

[02:14:14] Speaker 01:
That is the kind of pragmatic balancing that we think Brown reflects, like those Supreme Court cases.

[02:14:23] Speaker 02:
Except for Brown in the Supreme Court.

[02:14:27] Speaker 01:
You are not going to hear any arguments for me that segregation is abhorrent and it is harmful.

[02:14:35] Speaker 01:
But on Brown, one of the things that the Brown decision did is it went through and showed that that separate was not equal, just like the VMI case, just like Section 703A2 in segregation cases.

[02:14:48] Speaker 01:
instruct courts to ask whether there's an adverse effect.

[02:14:51] Speaker 01:
And I totally hear the policy arguments about why you might not want that to be a rule.

[02:14:56] Speaker 01:
But our basic submission is if that's the view, then really the venue is Congress, particularly in a context like this one where you have uniform precedence of the circuits that's been around decades reaching this result.

[02:15:08] Speaker 01:
I mean,

[02:15:08] Speaker 01:
You know, we cite in our brief, the Gulf oil case and the Mines and rail case where the Supreme Court itself accorded significant weight to this kind of unbroken circuit precedent.

[02:15:19] Speaker 01:
And, you know, we think the same is appropriate here.

[02:15:22] Speaker 09:
Thank you, Mr. Shah.

[02:15:26] Speaker 09:
Let me make sure my colleagues don't have additional questions for you.

[02:15:30] Speaker 05:
Are you aware of a 702 case that said, because it doesn't say segregate or classify on the basis of race.

[02:15:38] Speaker 05:
It says segregate or classify in a way that would have an adverse, or tend to deprive any individual, or otherwise have an adverse effect on status as an employee.

[02:15:51] Speaker 05:
Are you aware of any case that has said if the segregation or classification were on the base of race, sex,

[02:15:58] Speaker 05:
ethnicity, religion, that would not itself constitute an adverse effect.

[02:16:04] Speaker 05:
The adverse effect requires something more than that.

[02:16:07] Speaker 01:
Yeah.

[02:16:07] Speaker 01:
So, I mean, there's not many cases litigated under 702 on this sort of theory, but there is one from the Seventh Circuit, and I'm going to apologize.

[02:16:15] Speaker 01:
I don't have the citation handy.

[02:16:17] Speaker 01:
But if you do a search for the Seventh Circuit and Section 703A2, you will come up with a very recent case that holds exactly that.

[02:16:24] Speaker 05:
holds that segregating.

[02:16:28] Speaker 01:
Right, that you need to show an adverse effect in a segregation case as well.

[02:16:32] Speaker 05:
And the segregation there was on the basis of a prohibited characteristic as opposed to some other.

[02:16:37] Speaker 01:
That's right.

[02:16:38] Speaker 01:
So the fact, the basic claim was a Hispanic person said that their boss was sending all of Hispanic employees

[02:16:46] Speaker 01:
to a store in a Hispanic neighborhood, and that itself was actionable.

[02:16:51] Speaker 01:
And what the Seventh Circuit held is basically the Brown rule that if you can show an adverse effect on employment opportunities or your ability to do your job, then it can proceed.

[02:17:01] Speaker 01:
But if not, not.

[02:17:07] Speaker 09:
Thank you, Mr. Schaaf.

[02:17:08] Speaker 09:
I don't think we have any further questions for you.

[02:17:10] Speaker 09:
Thank you, Mr. Wolfman.

[02:17:13] Speaker 09:
We'll give you some rebuttal time.

[02:17:14] Speaker 09:
You'll have three minutes for rebuttal.

[02:17:16] Speaker 11:
Thank you, Your Honor.

[02:17:18] Speaker 11:
Let me just start where the court appointed counsel left off.

[02:17:24] Speaker 11:
I'm not familiar with that Seventh Circuit case, but if that's the rule in that case, that case is wrong.

[02:17:30] Speaker 11:
You cannot do that to people on the basis of national origin or race.

[02:17:35] Speaker 11:
That is a violation of 703A1.

[02:17:37] Speaker 11:
I want to go to one point that has been raised a number of times, which

[02:17:42] Speaker 11:
The original question from Judge Tito was, is there legislative history that mentions the de minimis rule?

[02:17:47] Speaker 11:
There is not.

[02:17:49] Speaker 11:
But what there is, and I don't think you need this to resolve this case because the text resolves it, but we review legislative history at page 26 of our opening brief.

[02:17:58] Speaker 11:
And it says quite the opposite, that the purpose of the law was to eradicate all discrimination.

[02:18:04] Speaker 11:
And the Supreme Court has said the same thing.

[02:18:08] Speaker 11:
For instance, in Manhart, it says,

[02:18:10] Speaker 11:
The purpose of the statute was to target the entire spectrum of disparate treatment in Franks versus Bowman, the court said, Congress prohibited all practices in whatever form, which create inequality and employment opportunity due to discrimination.

[02:18:25] Speaker 11:
So I think that you're looking beyond the text and I don't think it's necessary.

[02:18:29] Speaker 11:
I think it's supportive of us.

[02:18:31] Speaker 11:
I do want to note a couple other points.

[02:18:35] Speaker 11:
On Burlington Northern versus White, I do not think it is fair to say that the court interpreted the words discriminated against different from how we are suggesting it be interpreted.

[02:18:49] Speaker 11:
The court says on

[02:18:52] Speaker 11:
page 59 of the opinion, no one doubts that the term discriminate against refers to distinctions or differences in treatment that injure protected individuals.

[02:19:03] Speaker 11:
It goes on to give its interpret.

[02:19:07] Speaker 05:
Sorry, what page are you on?

[02:19:09] Speaker 05:
I have one.

[02:19:11] Speaker 05:
I thought you said 59.

[02:19:12] Speaker 11:
OK, thank you.

[02:19:15] Speaker 11:
And then the court then goes on

[02:19:18] Speaker 11:
for purposes beyond the text to serve the purposes of the statute, which are to encourage employee reporting of discrimination, oppositional conduct, to go on to hold what it does in that case on the basis of the policy considerations.

[02:19:34] Speaker 11:
Here, all you have to do is focus on the text of the statute, which is not oriented towards the employee, but as I've said, only to employee conduct.

[02:19:46] Speaker 11:
And that's all that's necessary to resolve this case.

[02:19:48] Speaker 11:
Again, in white, the concern was encouraging employee conduct.

[02:19:54] Speaker 11:
The final thing I would want to say, because I know my time is limited, I want to end where court-appointed Micas began with stare decisis.

[02:20:04] Speaker 11:
Stare decisis exists to protect reliance interests.

[02:20:09] Speaker 11:
Except for a court appointed amicus, no one here relies on Brown.

[02:20:13] Speaker 11:
No one claims a legitimate interest in making discriminatory job transfers.

[02:20:18] Speaker 11:
The federal government seeks to overrule it and largely agrees with our position.

[02:20:23] Speaker 11:
Not a single amicus typically present to defend here employer's interest is here to defend the rule in Brown.

[02:20:34] Speaker 11:
Beyond that, so there are no reliance interest before the court.

[02:20:38] Speaker 11:
Beyond that, the rule has been implied inconsistently.

[02:20:42] Speaker 11:
As Judge Rogers suggested in her concurrence in Ortiz-Diaz, the denial of transfer was considered objectively harmful in Ortiz-Diaz because of the transfer's, quote, potential to aid Ortiz-Diaz's professional development, end quote.

[02:20:59] Speaker 11:
But Samuel Forkyo's forced reassignment, which resulted in him being closed out of meetings with high-level management, among other things, wasn't considered objectively harmful, even though it's common that access to high-level management is critical to advancing one's career.

[02:21:16] Speaker 11:
My point being, and here's where I want to end, Brown is not a rule that employers and employees can rely on because it is really no rule at all.

[02:21:26] Speaker 11:
In our view, the decision, Brown should be overruled, the district court's decision should be reversed, and the case remanded for consideration of Ms.

[02:21:37] Speaker 11:
Chambers' claims.

[02:21:38] Speaker 11:
Thank you.

[02:21:39] Speaker 10:
Mr. Wolfman, you began your rebuttal with reference to the legislative history, I think, on this question of de minimis caravans.

[02:21:52] Speaker 10:
So here's what I'm concerned with.

[02:21:55] Speaker 10:
This is from a case called Wisconsin Department of Revenue versus William Wrigley, Jr.

[02:22:01] Speaker 10:
Company.

[02:22:02] Speaker 10:
Wisconsin asserts that the plain language of the statute bars this recognition of a de minimis exception because the immunity is limited to situations where the quote, the only business activities within the state, close quote, are those described in the statute.

[02:22:17] Speaker 10:
This ignores the fact that the venerable maxim de minimis non curat lex.

[02:22:23] Speaker 10:
is part of the established background of legal principles against which all enactments are adopted and which all enactments absent contrary indication are deemed to accept.

[02:22:35] Speaker 10:
The court then cites five of its own precedents.

[02:22:38] Speaker 10:
So my question is this, what is the contrary indication in the statute that there's no carve out for de minimis here?

[02:22:47] Speaker 11:
I will, with respect, Judge Ginsburg, I will answer that the way I answered it earlier, which is to the extent that there is one.

[02:22:55] Speaker 11:
We don't need to fight with that, the venerable principle, to the extent that there is one.

[02:23:00] Speaker 11:
Discrimination alone gets you beyond any de minimis threshold.

[02:23:04] Speaker 11:
That's what the statute prohibits.

[02:23:06] Speaker 11:
It's an enormously important value in our society.

[02:23:10] Speaker 11:
The Congress made that clear in 1964.

[02:23:14] Speaker 11:
the anti-discrimination principle is as old as the Civil War Act amendments to the Constitution.

[02:23:25] Speaker 11:
So if there is a de minimis exception, it has been overridden anytime someone proves discrimination.

[02:23:31] Speaker 10:
So discrimination alone is by itself not de minimis.

[02:23:36] Speaker 11:
That is correct.

[02:23:37] Speaker 10:
Gotcha.

[02:23:38] Speaker 10:
Thank you.

[02:23:40] Speaker 05:
Thank you.

[02:23:41] Speaker 05:
Sorry, just discrimination with respect to terms conditions of privileges employment is really that is correct.

[02:23:48] Speaker 11:
And here I think we've already made our point as to what our definition is of those things.

[02:23:55] Speaker 11:
But I think that's an important limitation judgmental act that this statute doesn't affect things outside the workplace.

[02:24:02] Speaker 11:
And it's only with respect to five prohibited characteristics.

[02:24:08] Speaker 09:
Thank you, counsel.

[02:24:09] Speaker 09:
Thank you to all counsel for your arguments this morning.

[02:24:12] Speaker 09:
Mr. Schaaf, you are appointed by the court to assist the court in this matter, and the court thanks you for your assistance.

[02:24:18] Speaker 09:
We'll take this case under submission.