good morning your owners christine back to the commission as appellant race discrimination can manifest in a variety of ways it can manifest in lower pay it can manifest in hostility through words and denigrating treatment at the workplace in a segregation case the race discrimination is made manifest in the employer's intentional separation of one employee from other employees based on their race the language of title servants provision prohibiting  segregation is straightforward that section a prohibit segregation of them in any way which would deprive or tend to deprive any individual of employment opportunities because of their race there is segregate means to separate segregating by race that means to separate by race and that is what others don't did when it transference but manager kevin stuckey outrightly that i don't think that's the pressure point of this  case the pressure point here is adverse employment action or whether this alleged segregation that is the subject of th claim deprived anybody of an employment opportunity or otherwise adversely affected his status as an employee to use the statutory language that's what we're for that's what the fights about your honor i think we can focus on that short that was the adverse store that is the deprivation nothing in the statute requires more than it a deprivation of an employment related opportunity and that makes sense your honor is because of the scope of the practice that's being targeted here the district courts one of the district language in the step to what you're no arguing is that we should read the statute as if it had a period after classified or segregate employee period because any time segregation exists there will be a definite there will be a deprivation of importance that would essentially read that language out of the statute by making it unnecessary in every case why do you statute that there's nothing that that that the statute requires beyond that you're under no you're the agency's argument here is that the deprivation of employment opportunity is inherent in any act of segregation and that does read the additional language out of the statute you're saying the act of segregation itself is works to deprivation and that that can't be the way the statute is interpreted and applied because it  additional language analyse your honor the additional language is not invalidated at all you're saying that all we have to prove is an act of intentional segregation nothing else is required your honor mr stuckey was deprived of the opportunity to work at a particular location that is an employment opportunity there's nothing that the statue acquires beyond that and and to your point your honor about how to analyze the deprivation language this court in its decision did just that in a job application setting it's sat in analyzing the tendency to deprive another individual this court said that when a job applicant applies for a job and not only is that individual about it but the harm that's prohibited by the status of the tendency to deprive operates in that case where it would be that a categorical exclusion to not hire somebody because they were black would affect other applicants other individuals at the commission is  right that act might qualify refusing to hire someone because of race but what you're talking about here is a transfer you're not being denied anything he's being transferred you're on the language th over the long run make it harder for black employees to be promoted your honor the evidence in this case illustrates the fact that you are saying you've just described for example once mr stuckey was transferred out of this retail location he was replace by a stanek mr harrington it was a straight manager voluntarily requested a transfer he was placed at a predominately actually one hundred percent last stop store and he was replace by hispanic another employee your position seems to be it's not necessary to prove any of these things so i'm trying to figure out whether what the commission wants is the opportunity to prove something even though you say you don't think you need to prove  evidence shows i'm not asking what you think the evidence you know shows i'm asking whether you want to prove anything say in addition to what the record now shows or are you happy to have this case resolved on this record and the argument you're now making that what follows the word employment in this subsection could be treated as if it didn't exist your honor at the commission respectfully is not treating in that understood and up and and analyzed the analogous provision in title seven which prohibits race segregation and locals the rationale of those decisions did not discuss materiality and probably understood what it deprivation of an employment opportunity is for example if the circuits longshoreman's association decision judge goldberg explained that the deprivation that occurs is the dissuading of black longshoreman from pursuing a job on the court because of the racial stigma that exists and that's created by racially segregated locals that is what the fifth circuit of the judge robert writing for the third circuit explained was the deprivation of an employment opportunity here your hon of the commission simply segments that the deprivation here of deprivation within the meaning of the statute occurred it was a deprivation because he no longer works at this location because of the intent to segregate its workforce just like back to your point about adverse action in materiality this court has repeatedly acknowledged that the point of that requirement is to separate trivial harms from non trivial harms and certainly this court can agree that racial segregation is not a trivial harm that was meant to be excised from protection of the statute its language expressly protects that in accordance with that understanding understanding that deprivation of employment opportunity not to be a the nature of segregation your honor is the separation geographic removal either in office space and assignments in this case that actual geography it is perfectly it's perfectly consistent with the prohibition of is very clear from the statute and from the case law particularly in the seventh circuit i don't think there's anything very clear to me putting aside the commission's parent stubborn refusal to prove what seems obvious is that this case was i understand your argument that there was no segregation but that's not the ground on which this case was decided and it's not the issue now before the question before us she is whether the e e o c has to prove an adverse employment action in the sense used in subsection a one in a case under subsection a two which has different language the question i'm now asking you is whether it whether there is any difficulty with the proposition one parallel to brown against the board of education that if autozone assigns black managers to black stores and therefore effectively excludes them from ninety percent of its stores that that deprives them of opportunities clearly the language in a one in eighty two is different in the language of a tooth is broader because it has the language deprives her tends to deprive the facts of this case he can't prove a deprivation of employment opportunity first of all he wasn't deprived of working at the he worked a caddy on two separate occasions the fact that this transfer which involved no adverse effect on him and remember the statute does say otherwise or otherwise adversely affect it was a lateral transfer what it boils down to is it was his preference to state in kathy and under the seven circuit case law that's not sufficient to establish a necessary and sufficient conditions we certainly have cases saying it is sufficient to show a violation of a to show an adverse employment action within the scope of they want do we have any cases saying that it is necessar to show in order to show a violation of a to what would be necessary to show of our nation they want your are in the nichols versus southern illinois university case which is seven sort of case filed in two thousand and seven that was a case involving black officers who adverse employment action and not every actually makes an employee unhappy unhappy because of adverse employment action that was one hundred patients and i'll answer it if you think we said that to show a violation of a two you have to show a violation of harm be a deprivation to other individuals who seek employment opportunities or that other or otherwise adversely affect someone's employment well tendency to harm is enough to there is no evidence of segregation will lead to wilkie is an african american store manager that was placed there she left because she was promoted out of that store to a higher position so she replaced by she was replaced by another african as we make our arguments their final argument has been well let's say to get around the fact that mr stuckey was transferred into and out of kid the on two separate occasions we're now going to argue segregation actually started in july of two thousand and twelve and the person that they say i was then he was responsible for this alleged segregation is mr robert harris and this is in their reply before they make it very very clear that the segregation began in two thousand and twelve and continues to date by mr harris for the several problems with that number one the biggest problem is that mr harris lost responsibility at the kids the store shortly after he transferred mr stuckey in  mr brown he would have removed mr wilkins none of that happened all those individuals stayed there after mr stuckey transferred a transfer which in fact he didn't show up for that they also alluded the fact well mr herring to let the is replaced by his fantasy if you look at the record evidence mr harrington left the store of his own volition for two reasons he wanted to have a store closer to his home and he was having a difficult time communicating she was actually shell justified she was offered several promotions within the cat the store which she turned tail and again ms brown is still at that particular store the other thing that the s c does not really address is mr harris who is the one standing accused of the segregation and discrimination actually placed mr stuckey into the candy store a year prior to to transferring him out stuckey said and i'm a quote so i told him i don't understand why i got to transfer at the district i don't mind the transfer but what's the real reason for the transfer then he goes on to say i'm trying to make it a predominantly hispanic store only because the area that the store is in and we lost a lot of sales in that store and what i'm trying to do is get them sales back up to where they're supposed to be so therefore i felt it was best for me to transfer you out of that store and this is the this is kevin s told him there's other ways to get sales back up just because i don't speak spanish i have to go that's not right that's why we have other people at the store who speak spanish to help out but that shouldn't be your reason as to why you transfer me  brief regarding adverse employment actions and again i would point the court to the nichols case and henry case there is a case outside of the seventh circuit and that's the del carmen case and it's a it's a good i believe it's a west virginia case and tend to deprive individual members of employment opportunities that are equal the court the fourth circuit explained racial segregation limits both black and white employees to advancement only within the confines of their races of the d c circuit as well  judge expressly relied on the racial stigmatisation that occurs when you racially segregate employees so if this court does not accept the notion that it deprivation of employment opportunity you curt when mr stuckey was removed from a geographic location in the segregation connotes geographical change this court then the commission submit should consider that the deprivation of an employment opportunity to be to work in an environment in which one is not confined to advancement or work within the confines of one's own race mr stuckey repeatedly objected to the july two thousand and twelve transfer and when he was transferred he was removed to a store with a predominately black staff mr harrington testified the reason he wanted to transfer was because there would be occasions where he would he and mr step would be available to assist mr carrington was black and there would be a line of eight to ten hispanic employees who would wait to speak to hispanic salesperson rather than accept help from the from him or mr stuckey to be the deprivation of employment opportunities the opportunity to work