United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 26, 2021 Decided June 3, 2022

No. 19-7098

MARY E. CHAMBERS,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

On Rehearing En Banc

Brian Wolfman argued the cause for appellant. With him 

on the briefs were David A. Branch and Madeline Meth.

Anna M. Baldwin, Attorney, U.S. Department of Justice, 

argued the cause for amicus curiae United States in support of 

appellant. With her on the brief were Kristen Clarke, Assistant 

Attorney General, Bonnie I. Robin-Vergeer, Attorney, Jennifer 

S. Goldstein, Associate General Counsel, Equal Employment 

Opportunity Commission, and Sydney A.R. Foster, Assistant 

General Counsel.

Stephen B. Pershing and Carolyn L. Wheeler were on the 

brief for amicus curiae Metropolitan Washington Employment 

Lawyers Association in support of appellant.
2

Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J. Zolle

were on the brief for amicus curiae Constitutional 

Accountability Center in support of appellant. 

Caroline S. Van Zile, Principal Deputy Solicitor General, 

Office of the Attorney General for the District of Columbia, 

argued the cause for appellee. With her on the brief were Karl 

A. Racine, Attorney General, Loren L. AliKhan, Solicitor 

General, at the time the brief was filed, Holly M. Johnson, 

Senior Assistant Attorney General, and Megan D. Browder, 

Assistant Attorney General.

Zachary C. Schauf, appointed by the court, argued the 

cause and filed the brief as amicus curiae.

Before: SRINIVASAN, Chief Judge, HENDERSON, ROGERS,

TATEL*, MILLETT, PILLARD, WILKINS, KATSAS, RAO, WALKER,

and JACKSON**, Circuit Judges, and GINSBURG, Senior Circuit 

Judge.

Opinion for the Court filed by Circuit Judge TATEL and 

Senior Circuit Judge GINSBURG.

Opinion concurring in the judgment in part and dissenting 

in part by Circuit Judge WALKER.

Dissenting opinion by Circuit Judge KATSAS, with whom 

Circuit Judges HENDERSON and RAO join.

TATEL, Circuit Judge, and GINSBURG, Senior Circuit 

Judge: In 1999, our court ruled in Brown v. Brody that the 

* Judge Tatel assumed senior status after this case was argued and 

before the date of this opinion. ** Judge Jackson did not participate in this matter.
3

denial or forced acceptance of a job transfer is actionable under 

Title VII of the Civil Rights Act of 1964 only if the employee 

suffered “objectively tangible harm.” 199 F.3d 446, 457. 

Because this rule is inconsistent with Title VII and because 

intervening Supreme Court authority has eroded its reasoning, 

we now overrule it. We hold that an employer that transfers an 

employee or denies an employee’s transfer request because of 

the employee’s race, color, religion, sex, or national origin

violates Title VII by discriminating against the employee with 

respect to the terms, conditions, or privileges of employment. 

I

Mary Chambers worked in the District of Columbia’s 

Office of the Attorney General for more than twenty years 

before this litigation, first as a clerk and later as a Support 

Enforcement Specialist and investigator. Complaining of a 

larger caseload than that of her colleagues, she sought 

numerous transfers to different units in the Office. After these 

requests were denied, she filed a charge of sex discrimination 

with the Equal Employment Opportunity Commission, 

contending that similarly situated male employees had been 

granted transfers they requested. She filed this Title VII suit 

against the District in 2014 alleging unlawful sex 

discrimination and retaliation.

The district court, applying Brown, granted summary 

judgment to the District. The court concluded that Chambers 

had proffered no evidence that the denial of her transfer 

requests, even if motivated by discriminatory animus, caused 

her “‘objectively tangible harm.’” Chambers v. District of 

Columbia, 389 F. Supp. 3d 77, 93 (D.D.C. 2019) (quoting 

Brown, 199 F.3d at 457). Noting we were bound by Brown, a 

panel of this court affirmed for the same reason. Chambers v. 

District of Columbia, 988 F.3d 497, 501 (2021). The members 
4

of the panel—the authors of this opinion—wrote separately, 

however, to echo concerns voiced in prior opinions that 

Brown’s limitation on claims for discriminatory lateral 

transfers contravenes Title VII, which makes no reference to 

“objectively tangible harm” or any similar requirement. Id. at 

503–04; see Ortiz-Diaz v. U.S. Department of Housing & 

Urban Development, 867 F.3d 70, 80–81 (D.C. Cir. 2017) 

(Rogers, J., concurring); id. at 81 (Kavanaugh, J., concurring). 

The panel members urged “that the full court hear this case en 

banc to correct this clear legal error.” Chambers, 988 F.3d at 

506. Heeding that call, the full court granted rehearing en banc 

to reconsider Brown’s rule that the denial or forced acceptance 

of a job transfer is actionable under Title VII, 42 U.S.C. 

§ 2000e-2(a)(1), only if the employee suffered “‘objectively 

tangible harm.’” Chambers v. District of Columbia, No. 19-

7098, 2021 WL 1784792 (May 5, 2021) (quoting Brown, 199 

F.3d at 457).

On rehearing, Chambers contends that Brown is facially 

inconsistent with Title VII. In her view, discrimination 

“connotes any differential treatment,” and Title VII prohibits 

all workplace discrimination based upon a protected 

characteristic. Appellant’s Br. 16. The United States filed an 

amicus brief in support of Chambers. The District also agrees 

that Title VII has no requirement of “objectively tangible 

harm” and that discriminatory transfers violate Title VII, but 

nonetheless urges us to stop short of accepting Chambers’s

broad formulation, lest the courts be deluged by challenges to 

“de minimis or harmless” workplace decisions. Appellee’s Br. 

10. With the parties in agreement that Brown should be 

overruled, we appointed Zachary C. Schauf as amicus curiae to 

defend the rule in Brown. He has ably done so, and the court 

thanks him for his assistance.
5

II

The parties agree that Chambers’s claim is covered by the 

antidiscrimination provision of Title VII, section 703(a)(1), 

which makes it “an unlawful employment practice . . . to fail or 

refuse to hire or to discharge any individual, or otherwise to 

discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

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

national origin.” 42 U.S.C. § 2000e-2(a)(1). Chambers claims 

her employer denied her repeated requests for a transfer to a 

different unit while granting similar requests to male 

employees. Therefore, the question before us, put in terms of 

the relevant statutory text, is whether an employer that denies 

an employee’s request for a job transfer because of her sex (or 

another protected characteristic) “discriminate[s] against” the 

employee with respect to the “terms, conditions, or privileges 

of employment.” As we show below, the answer provided by 

the straightforward meaning of the statute is an emphatic yes, 

and that answer is fully consistent with Supreme Court 

precedent. 

A

We begin by parsing the statute, giving undefined terms 

their “ordinary meaning.” Taniguchi v. Kan Pacific Saipan, 

Ltd., 566 U.S. 560, 566 (2012). The relevant part of section 

703(a)(1) is capacious: By leaving undefined the phrase 

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

“evince[ed] a[n] . . . intent to strike at the entire spectrum of 

disparate treatment . . . in employment.” Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (internal quotation 

marks omitted). Although the phrase is not without limits—

not everything that happens at the workplace affects an 

employee’s “terms, conditions, or privileges of 
6

employment”—the transfer of an employee to a new role, unit, 

or location (as opposed to the mere formality of a change in 

title that Judge Walker instances in his separate opinion)

undoubtedly is included. Indeed, as the Government aptly 

says, “it is difficult to imagine a more fundamental term or 

condition of employment than the position itself.” Br. for 

Resp’t in Opp. at 13, Forgus v. Shanahan, 141 S. Ct. 234 

(2020) (No. 18-942), 2019 WL 2006239, at *13 (cleaned up). 

The meaning of the term “discriminate” is also 

straightforward. “Discrimination” refers to “differential 

treatment.” Jackson v. Birmingham Board of Education, 544 

U.S. 167, 174 (2005). The unadorned wording of the statute 

admits of no distinction between “economic” and “noneconomic” discrimination or “tangible” and “intangible” 

discrimination. See Meritor, 477 U.S. at 64. Nor does the 

statute distinguish between “subtle” or “overt” discrimination. 

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 

(1973). Rather, Title VII prohibits all discrimination with 

respect to terms and conditions of employment. 

The statute speaks of “discriminat[ing] against” an 

employee because of a protected characteristic. “No one 

doubts that the term ‘discriminate against’ refers to distinctions 

or differences in treatment that injure protected individuals.” 

Burlington Northern & Santa Fe Railway Co. v. White, 548 

U.S. 53, 59 (2006); see also Bostock v. Clayton County, 140 S. 

Ct. 1731, 1740 (2020) (“To ‘discriminate against’ a person, 

then, would seem to mean treating that individual worse than 

others who are similarly situated.”). Refusing an employee’s 

request for a transfer while granting a similar request to a 

similarly situated employee is to treat the one employee worse 

than the other. Like “refus[ing] to hire” or “discharg[ing]” an 

employee, refusing a request for a transfer deprives the 

employee of a job opportunity. An employer that does this 
7

because of the employee’s “race, color, religion, sex, or 

national origin” has surely discriminated against the first 

employee because of a protected characteristic. 

Once it has been established that an employer has

discriminated against an employee with respect to that 

employee’s “terms, conditions, or privileges of employment”

because of a protected characteristic, the analysis is complete. 

The plain text of Title VII requires no more. Any additional 

requirement, such as Brown’s demand for “objectively tangible 

harm,” is a judicial gloss that lacks any textual support. 

Applying the statute as written to discriminatory job transfers 

does not, as the dissent claims, create an “artificial distinction 

between transfers and everything else.” Dissenting Op. at 29. 

To the contrary, it treats discriminatory transfers the same as 

any other discrimination with respect to the “terms, conditions, 

or privileges of employment.”

Our amicus tries to avoid this straightforward conclusion 

by invoking the canon of ejusdem generis to argue that section 

703(a) is limited to employment actions that are cognizable 

under the rule set forth in Brown. In Babb v. Wilkie, the 

Supreme Court applied this canon to conclude that the similarly 

worded statutory prohibition against age discrimination did not 

“encompass things that occur before a final decision is made.” 

140 S. Ct. 1168, 1176 n.4 (2020). That lends no support to the 

amicus’s completely different application of the canon. 

However much the general term embraces, it surely includes 

refusing a job transfer request, the functional equivalent of 

“refus[ing] to hire” an employee for a particular position.

One last point: Our amicus and the dissent argue that for 

a claim to be cognizable under section 703(a)(1), the plaintiff 

must allege more than de minimis harm because the principle 

de minimis non curat lex—the law is not concerned with 
8

trifles—is assumed to be incorporated in every statute, absent 

an indication to the contrary, see Wisconsin Department of 

Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992). 

Whatever the merits of this argument, Brown excludes far more 

than de minimis harms. We have, for example, held that 

“public humiliation or loss of reputation”—injuries that have 

traditionally supported tort liability at common law, see 

Memphis Community School District v. Stachura, 477 U.S. 

299, 306–07 (1986)—fail to satisfy Brown’s requirement of an 

“objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 

1130–31 (D.C. Cir. 2002). In any event, we need not decide 

today whether Title VII includes a de minimis exception 

because the discriminatory denial of a job transfer request, 

which deprives an employee of an employment opportunity 

offered to a similarly situated colleague, easily surmounts this 

bar.

B

1

Brown made no attempt to ground the requirement of an 

“objectively tangible harm” in the statute. Instead, it based that 

requirement upon “the clear trend of authority” in the decisions 

of other circuits and upon the Supreme Court’s then-recent 

decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 

(1998), which it viewed as having “reinforced” the 

requirement. 199 F.3d at 455–57 (internal quotation marks 

omitted). For the reasons mentioned above, we are convinced 

that Brown’s approach is clearly mistaken, and that conviction 

is not overcome by any “trend of authority,” let alone one 

marred by inconsistency, see below, section III. 

Whatever reinforcement Ellerth furnished when Brown 

was decided has since been undermined by the Supreme 

Court’s decision in White. In Ellerth, the Court relied upon 
9

principles of agency law to hold that an employer has no 

affirmative defense to vicarious liability under Title VII for a 

hostile work environment when harassment by a supervisor 

“culminates in a tangible employment action.” 524 U.S. at 765. 

The Brown court apparently perceived in that conclusion an 

implicit endorsement of a “tangible harm” requirement in Title 

VII claims involving direct liability. See 199 F.3d at 456. 

The Supreme Court put that notion to rest in White, 

however, when it explained that “Ellerth did not discuss the 

scope of [Title VII’s] general antidiscrimination provision,”

548 U.S. at 65, and that it had spoken of a “‘tangible 

employment action’ . . . only to ‘identify a class of [hostile 

work environment] cases’ in which an employer should be held 

vicariously liable (without an affirmative defense) for the acts 

of supervisors,” id. at 64 (alteration in original) (quoting 

Ellerth, 524 U.S. at 760–61). After White, no basis remains for 

thinking Ellerth supports, even implicitly, the approach 

adopted in Brown.

2

Finding no support in the statute or in Ellerth, our amicus 

and the dissent seek refuge in Supreme Court precedent dealing 

with the antiretaliation provision of Title VII. Our conclusion 

about the meaning of the antidiscrimination provision, 

however, is fully consistent with that precedent because there 

are fundamental differences between the antidiscrimination 

and the antiretaliation provisions. 

The antiretaliation provision of Title VII, section 704(a), 

makes it an “unlawful employment practice for an employer to 

discriminate against . . . any individual . . . because he has 

opposed any practice made an unlawful employment practice 

by this subchapter . . . .” 42 U.S.C. § 2000e-3(a). In White, the 

Court identified the contours of this provision, concluding that 
10

because it is “important to separate significant from trivial 

harms,” 548 U.S. at 68, only a retaliatory act that is “materially 

adverse” to the plaintiff is actionable, id. at 67–68. The Court 

further concluded that the standard for judging “material 

adversity” must be objective, meaning it must be judged from 

the perspective of a reasonable employee, because this is a 

“judicially administrable” standard that “avoids the 

uncertainties and unfair discrepancies that can plague a judicial 

effort to determine a plaintiff’s unusual subjective feelings.” 

Id. at 68–69. The amicus argues that the reasons the Court 

provided for reading those limitations into the antiretaliation 

provision are just as applicable to the antidiscrimination 

provision. 

This argument ignores a fundamental difference between 

the two provisions: Unlike the antidiscrimination provision, 

the antiretaliation provision is not expressly limited to actions 

affecting the terms, conditions, or privileges of employment. 

Reasoning that this terminological difference must “make a 

legal difference,” id. at 63, the Court held that the 

antiretaliation provision prohibits even retaliatory actions that 

do not affect the terms, conditions, or privileges of 

employment, for example, an employer making a false criminal 

charge against an employee who had complained of 

discrimination, or a law enforcement agency refusing to 

investigate death threats made against an employee who had 

complained of discrimination, id. at 63–64 (citing Rochon v. 

Gonzales, 438 F.3d 1211, 1213 (D.C. Cir. 2006) and Berry v. 

Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996)).

It was only after adopting this expansive interpretation of 

the antiretaliation provision that the Court was faced with the

problem of “separat[ing] significant from trivial harms.” Id. at 

68. The Court therefore looked outside the text of the provision 

for the necessary limiting principle. To that end, the Court 
11

identified the purpose of the antiretaliation provision as 

preventing “employer interference with unfettered access to 

Title VII’s remedial mechanisms” and concluded the provision 

should therefore be limited to “employer actions that are likely 

to deter victims of discrimination from complaining to the 

EEOC, the courts, and their employers” or as the Court put it, 

employer actions that are “materially adverse” to an employee. 

Id. (internal quotation marks omitted). The Court then had to 

decide how best to measure the likely deterrent effect of a 

challenged action; as mentioned above, the Court adopted an 

objective approach because it is more judicially administrable. 

None of these considerations applies to the

antidiscrimination provision. By tethering actionable behavior 

to that which affects an employee’s “terms, conditions, or 

privileges of employment,” the antidiscrimination provision by 

its terms provides the necessary limiting principle. When the 

phrase “terms, conditions, or privileges of employment” is 

reasonably construed, there is no danger that faithful 

enforcement of the antidiscrimination provision will turn Title 

VII into a “general civility code” for the workplace, Oncale v. 

Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).

Moreover, determining whether a challenged action relates 

to “terms, conditions, or privileges of employment” is a purely 

objective inquiry, well within the competence of a court. When 

it comes to the antidiscrimination provision, therefore, there 

simply is no need to engage in a “reasonable employee” inquiry 

to keep the court’s task within manageable limits. 

Our conclusion that the holding in White does not apply to 

the antidiscrimination provision is also more consistent with 

the different roles played by the two provisions. The role of 

the antiretaliation provision is to prevent “employer 

interference with unfettered access to Title VII’s remedial 
12

mechanisms.” White, 548 U.S. at 68 (internal quotation marks 

omitted). A “material adversity” requirement, which excludes 

actions insufficient to deter an employee from seeking a 

remedy for a Title VII violation, is entirely consistent with this 

objective. The antidiscrimination provision, by contrast, aims 

“to prohibit all practices in whatever form which create 

inequality in employment opportunity due to discrimination on 

the basis of race, religion, sex, or national origin,” Franks v. 

Bowman Transportation Co., 424 U.S. 747, 763 (1976), and to 

create “a workplace where individuals are not discriminated 

against because of their racial, ethnic, religious, or genderbased status,” White, 548 U.S. at 63. Thus, the 

antidiscrimination provision “seeks to prevent injury to 

individuals based on who they are,” while “[t]he antiretaliation 

provision seeks to prevent harm to individuals based on what 

they do.” Id.

Our dissenting colleagues also contend that precedent

governing hostile work environment claims suggests that Title 

VII prohibits only objectively “‘severe’” discrimination, 

assessed in terms of how it “‘would reasonably be perceived’ 

by someone in the employee’s position.” Dissenting Op. at 9 

(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21–22 

(1993)). That defense of Brown fares no better. The thrust of 

the hostile work environment cases is that an abusive working 

environment amounts to a “constructive alteration[] in the 

terms or conditions of employment” only if harassment is 

severe or pervasive. Ellerth, 524 U.S. at 752 (emphasis added). 

Those cases have no bearing on a case in which an employer 

discriminates against an employee with respect to the actual

terms or conditions of employment—for example, by 

transferring an employee to a new position because of the 

employee’s race or sex.
13

Contrary to the dissent’s characterization of the resulting 

jurisprudence as “harmless,” Dissenting Op. at 22, grafting an 

“objectively tangible harm” requirement onto the 

antidiscrimination provision has had consequences glaringly 

inconsistent with the objectives of Title VII’s 

antidiscrimination provision. One need look no further than 

this case. Under the “objectively tangible harm” requirement, 

an employer that denies an employee’s request for a transfer 

because of the employee’s sex (or race, etc.) would escape 

liability under Title VII unless the employee could show she 

suffered an “objectively tangible harm,” even though the denial 

of the request unquestionably deprived the employee of an 

equal employment opportunity. Even more perverse, as our 

amicus conceded at oral argument, an employer that provides

doughnuts every week for employees but hangs a “whites only” 

sign over the doughnuts has not caused an “objectively tangible 

harm” to non-white employees. Recording of Oral Arg. 

2:04:12–2:05:48. That alone shows just how much the atextual 

requirement of “objectively tangible harm” frustrates Title 

VII’s purpose of ending discrimination in the workplace. 

C

We are unpersuaded by our amicus’s argument that the 

rule in Brown is necessary to shield employers from “judicial 

micromanagement of business practices.” Amicus Br. 38 

(quoting Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 

1556 (D.C. Cir. 1997)). Overruling Brown, he posits, would 

make a federal case out of “[a] salesperson transferred from 

sporting goods to power tools.” Id. at 1. But of course, an 

employer remains free to transfer an employee from one 

department to another for no reason or for any reason at all—

any reason, that is, except the employee’s “race, color, religion, 

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). We 

disagree with the amicus that refusing to let women work in the 
14

power tools department because of gender stereotypes, for 

example, is part of the “minutiae of personnel management” 

that escapes Title VII’s notice. Amicus Br. 39 (internal 

quotation marks omitted). To the contrary, it is exactly the sort 

of workplace discrimination Title VII aims to extinguish. Yet, 

as the amicus conceded at oral argument, Brown allows 

employers to engage in that discrimination with impunity 

unless an employee can show some additional “objective” 

harm. Recording of Oral Arg. 1:50:58–1:52:06.

Moreover, well-established case law adequately protects 

employers from frivolous claims. If a Title VII plaintiff fails 

to plead “‘sufficient factual matter’” to state a discrimination 

claim that is “‘plausible on its face,’” then the district court 

should dismiss the case before discovery. Harris v. D.C. Water 

& Sewer Authority, 791 F.3d 65, 68 (D.C. Cir. 2015) (some 

internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009)). And under the framework set forth 

in McDonnell Douglas, a Title VII plaintiff relying upon 

circumstantial evidence must establish “an inference of 

discrimination” before the burden shifts to the employer to 

“identify [a] legitimate, non-discriminatory” reason for its 

actions. Walker v. Johnson, 798 F.3d 1085, 1091–92 (D.C. Cir. 

2015). To survive summary judgment, an employee claiming 

a discriminatory transfer denial therefore must show not only 

that the employee’s transfer request was rejected, but that it 

“‘was rejected under circumstances which give rise to an 

inference of discrimination.’” Harding v. Gray, 9 F.3d 150, 

152 (D.C. Cir. 1993) (quoting Texas Department of Community 

Affairs v. Burdine, 450 U.S. 248, 253 (1981)). These doctrines 

provide employers ample opportunity to terminate an 

unmeritorious discrimination claim without reading an extratextual limitation into Title VII.
15

At bottom, our disagreement with our amicus and the 

dissent is this. In their view, the Brown rule is necessary to 

“screen out cases involving objectively insubstantial injuries 

alleged to flow from garden-variety workplace assignments 

and interactions.” Dissenting Op. at 30. In our view, we ought 

to read Title VII to mean what it says—that it prohibits any 

“discriminat[ion] against [an] individual with respect to . . . 

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

§ 2000e-2(a)(1), even if that that discrimination is “gardenvariety.” This saves courts the trouble of administering an 

open-ended requirement of objectively material injury found 

nowhere in the statute’s text. And it is more consistent with 

the statute’s “intent to strike at the entire spectrum of disparate 

treatment . . . in employment.” Meritor, 477 U.S. at 64 

(internal quotation marks omitted).

III

Having concluded that Brown is wrong, we now consider 

whether to set it aside. Our court, like the Supreme Court, 

observes the doctrine of stare decisis—“‘the idea that today’s 

[c]ourt should stand by yesterday’s decisions.’” Allegheny 

Defense Project v. FERC, 964 F.3d 1, 17 (D.C. Cir. 2020) (en 

banc) (alteration in original) (quoting Kimble v. Marvel 

Entertainment, LLC, 576 U.S. 446, 455 (2015)). Even in the 

rare instances in which it is appropriate to grant rehearing en 

banc, departure from stare decisis “‘demands special 

justification.’” Critical Mass Energy Project v. Nuclear 

Regulatory Commission, 975 F.2d 871, 875 (D.C. Cir. 1992) 

(en banc) (quoting Arizona v. Rumsey, 467 U.S. 203, 212 

(1984)). We have also explained, however, that stare decisis 

applies with less force to our opinions than to those of the 

Supreme Court, both because the circuit courts “play a different 

role in the federal system” and because our precedent “is 
16

generally established by the majority vote of just three circuit 

judges.” Id. at 876. 

We have previously identified two main reasons for 

overruling circuit precedent. First, “it is appropriate for the en 

banc court to set aside circuit precedent when, ‘on 

reexamination of an earlier decision, it decides that the panel’s 

holding on an important question of law was fundamentally 

flawed.’” Allegheny, 964 F.3d at 18 (quoting Critical Mass, 

975 F.2d at 876). “We also may depart from circuit precedent 

when ‘intervening development[s]’ in the law—such as 

Supreme Court decisions—‘ha[ve] removed or weakened the 

conceptual underpinnings from the prior decision[.]’” Id.

(alterations in original) (quoting United States v. Burwell, 690 

F.3d 500, 504 (D.C. Cir. 2012) (en banc)). Both reasons 

support overruling Brown.

Brown is fundamentally flawed because it “elevated policy 

concerns . . . over the plain statutory text.” Id. at 17. The plain 

text of section 703(a)(1) contains no requirement that an 

employee alleging discrimination in the terms or conditions of 

employment make a separate showing of “objectively tangible 

harm.” Members of this court have repeatedly noted that

Brown is therefore out of step with the “straightforward” 

meaning of Title VII. Chambers, 988 F.3d at 503 (Tatel and 

Ginsburg, JJ., concurring); see, e.g., Ortiz-Diaz, 867 F.3d at 81 

(Kavanaugh, J., concurring) (“[T]ransferring an employee 

because of the employee’s race (or denying an employee’s 

requested transfer because of the employee’s race) plainly 

constitutes discrimination with respect to ‘compensation, 

terms, conditions, or privileges of employment’ in violation of 

Title VII.” (quoting 42 U.S.C. § 2000e-2(a)). Our dissenting 

colleagues contend that this defect is insufficiently serious to 

overcome stare decisis, but it is exactly the same defect we 

relied on in Allegheny. See Dissenting Op. at 19–21. In that 
17

case, the en banc court held that a panel decision was 

fundamentally flawed because, like Brown, it failed to comport 

with the Supreme Court’s command to “‘enforce plain and 

unambiguous statutory language . . . according to its terms.’” 

Allegheny, 964 F.3d at 18 (quoting Intel Corp. Investment 

Policy Committee v. Sulyma, 140 S. Ct. 768, 776 (2020)). 

“Because the approach to statutory construction reflected in 

[Brown] was fundamentally flawed and grounded in a mode of 

statutory construction that has been foreclosed by the Supreme 

Court, stare decisis principles do not stand in the way of the en 

banc court holding that [Title VII’s antidiscrimination 

provision] means what it says.” Id.

In addition, as explained above, the Supreme Court’s 

decision in White, decided seven years after Brown, has

overtaken Brown’s reasoning. White clarified that Ellerth

required a showing of tangible harm only to identify a subset 

of hostile work environment cases in which vicarious liability 

would attach. White, 548 U.S. at 64. Therefore, Ellerth no 

longer furnishes any support for Brown’s atextual 

interpretation of the statute.

In overruling Brown, we acknowledge that the other 

circuits that have addressed the question have held that a 

plaintiff challenging the denial of a transfer under Title VII’s 

antidiscrimination provision must make some additional 

showing of tangible harm. Those circuits, however, speak with 

discordant voices when it comes to the sort of harm that can 

support a claim of a discriminatory job transfer. The Fifth 

Circuit, for example, has held that “adverse employment 

actions include only ultimate employment decisions such as 

hiring, granting leave, discharging, promoting, or 

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

559 (5th Cir. 2007) (per curiam) (cleaned up). The Fourth 

Circuit has held just the opposite—that Title VII allows claims 
18

for “[c]onduct short of ultimate employment decisions” in job 

reassignment cases. James v. Booz-Allen & Hamilton, Inc., 

368 F.3d 371, 375–76 (4th Cir. 2004) (internal quotation marks 

omitted). Both the Fifth and Eleventh Circuits consider a 

transfer to be an actionable demotion if the new position is “less 

prestigious or less interesting.” Thompson v. City of Waco, 764 

F.3d 500, 503 (5th Cir. 2014) (internal quotation marks 

omitted); see Hinson v. Clinch County, 231 F.3d 821, 830 (11th 

Cir. 2000) (finding “a genuine issue of fact as to whether the 

new job was less prestigious”). The Seventh Circuit disagrees, 

holding that moving an employee “from an interesting job she 

liked that involved overseeing several other people to a boring 

job she didn’t like and that lacked any supervisory duties” falls 

short of an adverse employment action. Place v. Abbott 

Laboratories, 215 F.3d 803, 810 (7th Cir. 2000). In one 

nonprecedential opinion, the Sixth Circuit faulted an employee 

for adducing evidence of the prestigiousness of “postmaster 

positions in general” rather than evidence specific to the city 

where he sought a transfer to a postmaster position. Freeman 

v. Potter, 200 F. App’x 439, 445 (6th Cir. 2006).

Two recent cases illustrate this wide divergence in how 

other circuits treat discriminatory transfers. In EEOC v. 

AutoZone, Inc., a Black employee’s supervisor told him that he 

was being transferred to work in a different neighborhood 

because the company wanted to keep his workplace 

“predominantly Hispanic.” 860 F.3d 564, 565 (7th Cir. 2017)

(internal quotation marks omitted). Although that case dealt 

with a different provision of Title VII, section 703(a)(2), the 

Seventh Circuit indicated that the transfer at issue would not 

amount to an adverse employment action because, in its view, 

it insufficiently harmed the employee. Id. at 569–70. By 

contrast, the Sixth Circuit held that discriminatory transfers are 

actionable so long as the resulting harm is more than “de 

minimis.” Threat v. City of Cleveland, 6 F.4th 672, 679 (6th 
19

Cir. 2021). That court concluded that a job transfer surmounted 

this bar when the only change in the employee’s job was not 

receiving a shift on his “preferred day” of the week. Id. The 

dissent downplays differences among the circuits as the sort of 

“narrow disagreements” to be expected when courts apply a 

“qualitative” standard. Dissenting Op. at 26. But it is hardly a 

point in Brown’s favor that its rule is so amorphous as to 

accommodate inconsistent outcomes in like cases.

Our own precedents applying Brown are no less muddled. 

One panel held that refusing to transfer an employee to a 

position “higher in the hierarchy” of a government agency 

satisfied Brown’s requirement of “objectively tangible harm.” 

Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003). By 

contrast, another panel rejected a claim by an agency employee 

who lost his temporary position as a section chief and was 

made a unit chief “within [another] section.” Forkkio, 306 F.3d 

at 1129–31. One panel held that the “inconvenience” of a “less 

favorable schedule” was enough to support a claim for a 

discriminatory transfer, Ginger v. District of Columbia, 527 

F.3d 1340, 1344 (D.C. Cir. 2008), but another panel held that 

Brown barred a claim based on a “shift change” to a “generally 

less favorable” shift, Jones v. D.C. Department of Corrections, 

429 F.3d 276, 281 (D.C. Cir. 2005). More recently, a divided 

panel held that an employee suffered no “objectively tangible 

harm” when he was “denied a transfer away from a racially and 

ethnically biased supervisor to a non-biased supervisor more 

likely to advance his career,” only to reverse course on 

rehearing. Ortiz-Diaz, 867 F.3d at 71, 73–74. 

We have time and again wrestled with Brown’s 

requirement of “objectively tangible harm.” See, e.g., OrtizDiaz, 867 F.3d at 74; Stewart, 352 F.3d at 426; Forkkio, 306 

F.3d at 1131; Currier v. Postmaster General, 304 F.3d 87, 88 

(2002); Russell v. Principi, 257 F.3d 815, 818 (2001); 
20

Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 

844 (2001); Maramark v. Spellings, No. 06-5099, 2007 WL 

2935411, at *1 (Sept. 20, 2007). Our district judges have done 

so in dozens more cases. See, e.g., Savage v. Azar, 301 F. Supp. 

3d 114, 129 (2018); Halcomb v. Office of the Senate Sergeantat-Arms, 563 F. Supp. 2d 228, 240 (2008); Oliver-Simon v. 

Nicholson, 384 F. Supp. 2d 298, 308 (2005). These cases have 

consumed enormous judicial resources seeking to answer a 

question far removed from the core Title VII inquiry—whether 

an employer has discriminated against an employee based on a 

protected characteristic. And they leave district courts adrift 

with a line-drawing exercise unmoored from the statutory text. 

Both our court’s experience and that of our sister circuits have 

proven Brown’s standard largely unadministrable. Neither 

practical nor doctrinal reasons justify persisting in this course.

Not a single member of this court truly advocates retaining 

Brown in its present form, the dissent’s invocation of stare 

decisis notwithstanding. The dissent would uphold Brown only 

after draining it of substance and recasting it as a de minimis 

rule. That revisionist account is belied by our two-decade 

misadventure in applying Brown, and as Judge Walker 

correctly points out in his separate opinion, by the outcome in 

Brown itself. Thus, the real point of contention is how to 

interpret Title VII’s antidiscrimination provision. We interpret 

it consistent with its text to prohibit all discrimination in the 

terms or conditions of employment. 

IV

Without any footing in the text of Title VII or Supreme 

Court precedent, there is no sound basis for maintaining Brown

as circuit law. For these reasons, we overrule Brown and hold 

that discriminatory job transfers are actionable under Title VII. 
21

We remand the case to the merits panel for disposition 

consistent with this opinion.

So ordered.
WALKER, Circuit Judge, concurring in the judgment in 

part, dissenting in part.

Title VII of the Civil Rights Act prohibits employment 

discrimination based on “race, color, religion, sex, or national 

origin.”1 To prevail on an antidiscrimination claim under Title 

VII, plaintiffs must prove that they have suffered a non-de

minimis injury. That standard is far from onerous. It requires 

only a showing that the injury is not “trifling” or “negligible.”

2

 

Today, the Court could have clarified and embraced that 

standard. Instead, it leaves open the possibility that plaintiffs

can successfully sue over de minimis injuries. That makes an 

imperfect situation even worse — worse, that is, for everyone 

except those who will profit from unjustified settlements and 

expensive trials over the kinds of de minimis slights that Title 

VII does not cover.

I

Title VII’s antidiscrimination provision makes it unlawful 

for an employer:

to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against 

any individual with respect to his 

compensation, terms, conditions, or privileges 

of employment, because of such individual’s 

race, color, religion, sex, or national origin.3

With that provision, “Congress intended to prohibit all 

practices in whatever form which create inequality in 

1 42 U.S.C. § 2000e-2(a)(1).

2 See De Minimis, Black’s Law Dictionary (11th ed. 2019) (cleaned 

up).

3 42 U.S.C. § 2000e-2(a)(1).
2

employment opportunity due to discrimination on the basis of 

race, religion, sex, or national origin.”4 It also protects against 

workplace harassment that becomes so “severe or pervasive” 

as to alter a “term, condition, or privilege of employment.”5

Brown v. Brody interpreted Title VII’s antidiscrimination 

provision to require plaintiffs to show that they suffered an 

injury that a “reasonable trier of fact” would deem “objectively 

tangible harm.”6 By that, Brown may have meant objectively 

“material” harm.7 But its reference to “tangible” harm 

appeared to set a higher bar that has caused confusion in the 

years since.8

Each of today’s opinions says the proper bar is not as high 

as Brown made it sound. That leaves only the question of how 

high the bar really is. 

For the reasons explained by Judge Katsas, the answer is 

that Title VII’s antidiscrimination provision makes actionable 

only objectively material harm.9 And rather than repeat his 

reasons, I join parts of I, II, III.A, III.B, and V of his opinion

insofar as they are consistent with this opinion.

I add two brief additional points. First, although we can 

learn from our Court’s “two decades of judicial experience in 

distinguishing substantial harms from insubstantial ones,”

10 I 

would give future panels license to break from those moments 

4 Franks v. Bowman Transportation Co., 424 U.S. 747, 763 (1976).

5 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) 

(cleaned up).

6 199 F.3d 446, 457 (D.C. Cir. 1999).

7 Dissent at 6.

8 Brown, 199 F.3d at 457.

9 Dissent at 7-13.

10 Dissent at 34.
3

in our Court’s past when it was not faithful to the standard as 

Judge Katsas explains it today.

Second, for the same reasons Judge Katsas applies the 

objectively-material-injury standard to the antidiscrimination 

provision, the de minimis principle applies as well. The 

“maxim de minimis non curat lex (‘the law cares not for 

trifles’) 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.”11 It is an “old law maxim” that parallels a more 

modern idiom: Don’t make a federal case out of every 

perceived slight.12 And nothing indicates that Congress 

intended to displace the de minimis principle in Title VII’s 

antidiscrimination provision.

13

 That provision is not “all about 

trifles,”14 nor is it a “general civility code for the American 

workplace.”15 

I see little if any gap between a non-de-minimis-injury 

standard (like that proposed by the District of Columbia,

embraced by the Sixth Circuit in Threat v. City of Cleveland,

and left open as a possibility by today’s decision) and the 

correct understanding of an objectively-material-injury

11 Wisconsin Department of Revenue v. William Wrigley, Jr., Co., 

505 U.S. 214, 231 (1992). 

12 Ware v. Hylton, 3 U.S. (3 Dall.) 199, 268 (1796) (opinion of 

Iredell, J.).

13 See Threat v. City of Cleveland, 6 F.4th 672, 678-79 (6th Cir. 

2021).

14 See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 234 (2014)

(emphasis omitted). 

15 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 

53, 68 (2006) (quoting Oncale v. Sundowner Offshore Services, Inc., 

523 U.S. 75, 80 (1998)).
4

standard (like that explained by Judge Katsas).

16

 After all, an 

injury is non-de minimis when it causes more than “trifling” or 

“negligible” harm.17 And an injury is material when it causes 

more than “trivial harms.”18 In this context, it is hard to detect 

any difference between “trifling,” “negligible,” and “trivial.”19 

II

Under a non-de-minimis- or objectively-material-injury 

standard, the next question is whether job transfers are 

actionable. There are at least three possible answers. One, 

which Chambers proposes and the Court adopts, creates a 

categorical rule that all job transfers are actionable.20 Another, 

which our precedents have understood Brown v. Brody to 

impose, says that no job transfers are actionable absent a 

separate showing of additional harm.

21

 The third avoids a 

16 Compare Threat, 6 F.4th at 679, with dissent at 8, 13.

17 See De Minimis, Black’s Law Dictionary (11th ed. 2019) (cleaned 

up). 

18 See White, 548 U.S. at 68 (“We speak of material adversity 

because we believe it is important to separate significant from trivial 

harms.”).

19 In addition, whether we call the standard non-de minimis or 

material, the Supreme Court has made clear that it must be an 

objective inquiry. See id. (“We refer to reactions of a reasonable

employee because we believe that the provision’s standard for 

judging harm must be objective.”).

20 Majority at 8.

21 See Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999); see also 

Ortiz-Diaz v. U.S. Department of Housing & Urban Development, 

867 F.3d 70, 74 (D.C. Cir. 2017) (“lateral transfers to different 

positions within a Department offering the same pay and benefits are 

ordinarily not changes in the terms, conditions, or privileges of 

employment” (cleaned up)); id. at 81 (Kavanaugh, J., concurring) 

(“Our precedents hold that discriminatory transfers (and 
5

categorical rule for the ill-defined category of job transfers and 

instead approaches job transfers as we would any other 

employment action, by asking whether the plaintiff suffered 

material harm. 

Judge Katsas’s opinion favors the third approach.

22

 It 

rejects a categorical rule. For two reasons, I agree. 

First, categorical rules aren’t real rules when the category 

is undefined. And as Judge Katsas and our precedents show, 

“job transfers” are not a defined category of employment 

actions.23 So either categorical rule would take courts on a 

detour from the proper inquiry (whether a plaintiff has suffered 

material harm) to a labeling game about whether an 

employment action meets the definition of something (a job 

transfer) that has no clear definition. 

Second, neither categorical rule accurately applies the 

materiality standard. An all-job-transfers-are-actionable rule 

disregards the reality that the harm from some job transfers is

de minimis. For example, a city that is restructuring its police 

department could change an employee’s title from “head 

detective” to “chief investigator” without altering the role. Is 

that a job transfer? Possibly. Is the change in the chief 

discriminatory denials of transfers) are ordinarily not actionable 

under Title VII.”).

22 Dissent at 13.

23 Dissent at 28-29; Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 

2003) (“Because of the equality of pay and benefits, we may call it a 

lateral transfer, but in reality, it is more similar to a denial of a 

promotion”).
6

investigator’s terms, conditions, and privileges of employment 

negligible? Almost certainly.

24

 

In light of possibilities like that, it is not clear how to 

reconcile the categorical rule Chambers proposes with the de 

minimis standard that Title VII requires. Perhaps “job 

transfer” incorporates a non-de minimis alteration of duties, 

location, or other terms and conditions of the job. That seems 

to be the District of Columbia’s quite reasonable approach.25 

If the Court agrees with the District of Columbia, it could say

so. 

On the other extreme is a rule that says no job transfers are

actionable absent additional harm like a change in salary or

benefits. That rule is at least as misguided as its opposite. No 

opinion in today’s case endorses it. 

Unfortunately, the same cannot be said for some of our 

precedents. One case, for example, concluded that the denial 

of a transfer from Washington, D.C. to Albany, New York

wasn’t actionable.26 Another case held that moving an 

employee from a position where he collected a paycheck while 

doing no work to a job with significant responsibilities wasn’t 

actionable either.

27

 But a move to a different state is not a 

24 I say “almost” because it would be material if the employer said 

the change was because of race: When the racism of an act is overt 

and undeniable, the act is material for the same reasons Judge Katsas 

explains that separate doughnuts would be actionable. Dissent at 31-

32 n.5.

25 District of Columbia En Banc Brief at 8.

26 Ortiz-Diaz v. U.S. Department of Housing & Urban Development, 

831 F.3d 488, 492 (D.C. Cir. 2016), rev’d on other grounds by OrtizDiaz, 867 F.3d 70 (D.C. Cir. 2017).

27 Currier v. Postmaster General, 304 F.3d 87, 88-89 (D.C. Cir. 

2002).
7

negligible alteration of the terms and conditions of 

employment, nor of course is a significant increase in job 

responsibilities.

Instead of attempting to impose a categorical rule, we 

should ask in each case whether the change in the employee’s 

job was material. That approach respects the necessarily factintensive nature of the de minimis standard. Under it, plenty 

of cases are obviously actionable, like moving an employee to 

another city,28 forcing her to take the night shift,

29

or transferring her from forklift operator to basic laborer.

30

 

The job transfer in Brown itself should have fit that bill, 

and it would have had Brown not misapplied its stated 

objective-materiality standard. Regina Brown was a loan 

officer at the Export-Import Bank.31 She had been working in 

the Bank’s Africa/Middle East Division, a role that had 

foreign-policy elements.32 Then, when the Bank reorganized 

its staff, it transferred her to its Contracts Administration 

Division, where she had a quite different set of duties.

33

 That 

transfer was a material change in her terms of employment, 

contrary to Brown’s conclusion.

34

 

That error, combined with Brown’s reference to “tangible 

harm,” has caused confusion.35 As noted above, we have 

rejected actionable claims. We have asked plaintiffs to show 

28 Ortiz-Diaz, 831 F.3d at 492.

29 Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021).

30 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 

53, 71 (2006).

31 Brown, 199 F.3d at 448. 

32 Id. at 448-49.

33 Id. at 449. 

34 See White, 548 U.S. at 70-71.

35 199 F.3d at 457.
8

an “extraordinary reduction in responsibilities” or 

“significantly diminished” duties rather than a material 

change.36 And we have repeatedly had to reverse district court

determinations that harms are immaterial in what should have 

been straightforward cases.37 

* * *

Our post-Brown confusion led plaintiffs like Mary 

Chambers to litigate under the misapprehension that they must 

show more of an injury than a job transfer with meaningfully

different job responsibilities. Today’s en banc court can

provide Chambers with an opportunity to meet a clarified 

standard, and I would vacate and remand in order to do so. I 

therefore join the part of the Court’s judgment that vacates and 

remands to the District Court.

38

 

But on remand, I would require Chambers to show that the 

denial of her requested job transfer was a non-de minimis 

injury — in other words, that the requested job transfer 

36 Youssef v. FBI, 687 F.3d 397, 402 (D.C. Cir. 2012) (quoting 

Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)); Czekalski 

v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007). 

37 See, e.g., Youssef, 687 F.3d at 399-400, 402 (a move from 

coordinating counterintelligence operations to bagging and tagging 

evidence); Freedman v. MCI Telecommunications Corp., 255 F.3d 

840, 844 (D.C. Cir. 2001) (involuntary transfer to the night shift).

38 The majority remands to the merits panel. As I understand it, the 

panel will need to vacate the district court’s grant of summary 

judgment and remand for the district court to address the District of 

Columbia’s separate argument that Chambers did not raise a dispute 

of material fact as to D.C.’s motive for denying her a transfer. As I 

would also vacate and remand for further summary-judgment 

proceedings, I join based on that understanding. 
9

included objectively material differences in job 

responsibilities. 

Title VII requires that standard. It “is not especially 

onerous.”39 A job transfer can often — though not always —

clear that low bar. 

39 Dissent at 2.
KATSAS, Circuit Judge, with whom Circuit Judges 

HENDERSON and RAO join, dissenting: This case turns on what 

kinds of injuries support disparate-treatment claims under Title 

VII of the Civil Rights Act of 1964. In Brown v. Brody, 199 

F.3d 446 (D.C. Cir. 1999), we held that an allegedly 

discriminatory transfer from one job to another, or an allegedly 

discriminatory denial of a transfer, is not actionable unless it is 

“materially adverse” to the employee when viewed 

“objectively” from the perspective of a reasonable person in the 

employee’s position. Id. at 457. This rule is consistent with 

statutory text, longstanding Supreme Court precedent, and the 

bedrock principle that Title VII is not a “general civility code”

for the workplace. Oncale v. Sundowner Offshore Servs., Inc., 

523 U.S. 75, 81 (1998). For more than two decades, we have 

applied Brown’s requirement of an objectively material injury 

both inside and outside the specific context of job transfers. 

Our district court likewise has applied Brown in scores if not

hundreds of cases. And every other circuit has followed 

Brown, in name or in substance.

My colleagues today overrule this landmark precedent, but 

they give no sound justification for breaking so sharply from 

law so settled. First, they argue that Brown was insufficiently 

grounded in the relevant legal text. That contention is 

mistaken, and it would not justify a departure from statutory

stare decisis even if it were correct. Second, they argue that 

intervening decisions have undermined Brown. But the

passage of time has only made Brown stronger: One circuit 

after another has agreed with it, and the most relevant later 

Supreme Court decision, Burlington Northern & Santa Fe 

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

Brown by requiring plaintiffs to show an objectively material 

injury to pursue retaliation claims under Title VII. Third, my 

colleagues argue that Brown has proven un-administrable. 

That conclusion is also mistaken, and it overlooks that White 

requires essentially the same standard for retaliation claims as 

Brown requires for disparate-treatment claims.
2

Today’s decision may have sweeping consequences and 

will cause substantial uncertainty regardless. My colleagues

formally limit their decision to job-transfer claims, explain that 

not every workplace slight affects the terms and conditions of 

employment, and reserve the possibility that Title VII may not 

extend to de minimis injuries. But the decision cannot fairly be 

confined to job transfers; just as the logic of Brown easily 

extends to all disparate-treatment claims, so does the antiBrown logic now embraced by my colleagues. To keep today’s 

decision within manageable limits, courts will have to build up 

either a new jurisprudence of what counts as terms or 

conditions of employment (an inquiry we have previously 

undertaken only in the context of harassment claims), or a new 

jurisprudence firmly applying the de minimis canon in this 

context, or both. These undertakings may fail, in which case 

the floodgates will open. And if they succeed, the relevant 

decisions will simply track our Brown jurisprudence, albeit 

under another doctrinal label.

Why throw the law into such disarray? My colleagues flag 

decisions that, in their view, inappropriately dismissed claims 

alleging substantial injuries. Given the volume of decisions

applying the Brown rule, the existence of individual cases that 

seem overly generous to employers (or, for that matter, of 

individual cases that seem overly generous to employees) is 

hardly surprising. But rather than tossing aside two decades of 

precedent, I would simply remind the district courts what much 

of our Brown caselaw has already made clear—that the 

requirement of an objectively material injury, although 

important, is not especially onerous.

For these reasons, and as explained further below, I 

respectfully dissent from the decision to overrule Brown.
3

I

Title VII of the Civil Rights Act prohibits employment 

discrimination based on race, sex, or other inappropriate 

considerations. Section 703(a)(1) of the Act, the core antidiscrimination provision of Title VII, makes it unlawful for an 

employer “to fail or refuse to hire or to discharge ... or 

otherwise to discriminate against” any individual, “with respect 

to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s race, color, religion, 

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Section 

704(a), the anti-retaliation provision, makes it unlawful for any 

employer “to discriminate against” any employee “because he 

has opposed any practice” prohibited by Title VII “or because 

he has made a charge, testified, assisted, or participated in any 

manner in an investigation, proceeding, or hearing” under Title 

VII. Id. § 2000e-3(a). Section 706 affords a private right of 

action to any person “claiming to be aggrieved” by a violation 

of Title VII. Id. § 2000e-5(f)(1).

In Brown, we considered when transfers from one job to 

another may support disparate-treatment claims under section 

703(a)(1). Surveying sixteen lower-court decisions, we noted 

“wide and deep” authority for the proposition that a lateral 

transfer does not necessarily inflict a “materially adverse”

actionable injury. 199 F.3d at 455–56 (cleaned up). We also 

explained that Burlington Industries, Inc. v. Ellerth, 524 U.S. 

742 (1998), invoked this line of authority to hold that, in cases 

involving sexual harassment by a supervisor, the employer is 

automatically liable if, but only if, the supervisor took some

“tangible employment action” against the employee. 199 F.3d 

at 456–57. Given all this, we announced “the following rule”:

a plaintiff who is made to undertake or who is denied a 

lateral transfer—that is, one in which she suffers no 
4

diminution in pay or benefits—does not suffer an 

actionable injury unless there are some other materially 

adverse consequences affecting the terms, conditions, 

or privileges of her employment or her future 

employment opportunities such that a reasonable trier 

of fact could conclude that the plaintiff has suffered 

objectively tangible harm. Mere idiosyncra[s]ies of 

personal preference are not sufficient to state an injury.

Id. at 457 (emphases added). Applying this rule, we held that 

the plaintiff in Brown had alleged only an idiosyncratic 

preference for one position over another, thus giving us “no 

objective basis” to find a material injury. See id.

We have applied this rule in numerous cases since Brown.

In doing so, we have found sufficient harm in cases involving, 

among other things, a transfer to the night shift, Freedman v. 

MCI Telecomm. Corp., 255 F.3d 840, 844 (D.C. Cir. 2001), or 

to a shift with irregular hours, Ginger v. District of Columbia, 

527 F.3d 1340, 1344 (D.C. Cir. 2008). Repeatedly, we have 

found sufficient harm if the employee was transferred to a 

position with less attractive job responsibilities. See, e.g., 

Youssef v. FBI, 687 F.3d 397, 401 (D.C. Cir. 2012) (new 

position “did not utilize [Youssef’s] skills and expertise” 

(cleaned up)); Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir. 

2011) (new position involved “complete loss of supervisory 

responsibilities”); Pardo-Kronemann v. Donovan, 601 F.3d 

599, 608 (D.C. Cir. 2010) (lawyer transferred “to a non-legal 

position”); Czekalski v. Peters, 475 F.3d 360, 364–65 (D.C. 

Cir. 2007) (“diminished ... supervisory and programmatic 

responsibilities”); Holcomb v. Powell, 433 F.3d 889, 902 (D.C. 

Cir. 2006) (“extraordinary reduction in responsibilities”). 

Likewise, we have held that the denial of a transfer to a 

“supervisor’s position” caused sufficient harm, Stewart v. 

Ashcroft, 352 F.3d 422, 426–27 (D.C. Cir. 2003), as did the 
5

denial of a transfer “away from a biased supervisor,” OrtizDiaz v. HUD, 867 F.3d 70, 74 (D.C. Cir. 2017). In contrast,

we have held that an employee’s “[p]urely subjective” 

dissatisfaction with a new position is insufficient to support a 

claim, as are objective but “not sufficiently significant” slights 

such as being excluded from certain management meetings or 

e-mails. Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir. 

2002); see Currier v. Postmaster Gen., 304 F.3d 87, 88–89

(D.C. Cir. 2002) (transfer away from a “do nothing position” 

to one “with some duties”); Stewart v. Evans, 275 F.3d 1126, 

1135 (D.C. Cir. 2002) (“minor changes in work-related duties 

or opportunities”).

We have also applied Brown outside the job-transfer 

context, to screen out disparate-treatment claims involving 

other objectively insubstantial alleged injuries. See, e.g., Baird 

v. Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir. 2011) (critical

comments and shouting); Douglas v. Donovan, 559 F.3d 549, 

553 (D.C. Cir. 2009) (failure to recommend employee for a 

Presidential Rank Award); Patterson v. Johnson, 505 F.3d 

1296, 1298 (D.C. Cir. 2007) (employee subjectively “fe[lt]

undermined” (cleaned up)); Broderick v. Donaldson, 437 F.3d 

1226, 1233 (D.C. Cir. 2006) (attorney’s loss of opportunity to 

submit briefs “directly to a top supervisor”); Taylor v. Small, 

350 F.3d 1286, 1292–93 (D.C. Cir. 2003) (placement on 

performance improvement plan); Russell v. Principi, 257 F.3d 

815, 818–19 (D.C. Cir. 2001) (poor performance rating, 

unconnected to any “bonus differential”). The common theme 

of these cases is that section 703(a)(1) does not cover 

“everything that makes an employee unhappy” at work. Id. at 

818 (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th 

Cir. 1996)).

In considering what constitutes an objectively material 

injury, these decisions have treated disparate-treatment claims 
6

under section 703(a)(1) and retaliation claims under section 

704(a) as interchangeable. See, e.g., Forkkio, 306 F.3d at

1130–32; Holcomb, 433 F.3d at 902; Douglas, 559 F.3d at 552.

 

II

Plaintiff Mary Chambers works in the child support 

division of the Office of the Attorney General of the District of 

Columbia. Beginning in 2008, Chambers repeatedly sought to 

be transferred from the interstate unit of that division to its 

intake unit. As her requests were denied, Chambers filed 

charges with the Equal Employment Opportunity Commission. 

After the EEOC declined to pursue her claims, Chambers filed 

this lawsuit alleging that the transfer denials reflected both sex 

discrimination and retaliation. She produced no evidence that 

the intake unit offered employees any better work, pay, hours, 

advancement opportunity, prestige, or other benefits than did 

the interstate unit. Applying Brown, the district court granted 

summary judgment to the District of Columbia. Chambers v. 

District of Columbia, 389 F. Supp. 3d 77, 93–94 (D.D.C. 

2019).

A panel of this Court affirmed, also based on Brown. 

Chambers v. District of Columbia, 988 F.3d 497, 501–02 (D.C. 

Cir. 2021) (per curiam). But the panel called for the en banc

Court to reconsider Brown and overrule it. See id. at 502–06 

(Tatel and Ginsburg, JJ., concurring).

III

In holding that disparate-treatment claims require the 

plaintiff to suffer an objectively material injury, Brown was 

correctly decided as a matter of statutory text, Supreme Court 

precedent, and the courts’ general authority to interpret express 

statutory injury requirements.
7

A

Section 703(a)(1) makes it unlawful for an employer to 

“discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of 

employment,” because of prohibited considerations such as 

race or sex. 42 U.S.C. § 2000e-2(a)(1). Section 706 authorizes 

private civil actions by any individual “aggrieved” by a 

violation of section 703(a)(1). Id. § 2000e-5(f)(1). Brown’s 

requirement of an objectively material injury follows from 

these provisions.

At an absolute minimum, the plaintiff must have suffered 

some injury. Start with the phrase “discriminate against.” In 

White, which involved a retaliation claim under section 704(a), 

the Supreme Court, citing precedent under section 703(a)(1), 

said “[n]o one doubts that the term ‘discriminate against’ refers 

to distinctions or differences in treatment that injure protected 

individuals.” 548 U.S. at 59 (emphasis added). And in Bostock 

v. Clayton County, 140 S. Ct. 1731 (2020), which involved 

section 703(a)(1), the Court cited White for the proposition that 

“[t]o ‘discriminate against’ a person ... would seem to mean 

treating that individual worse than others who are similarly 

situated.” Id. at 1740 (emphasis added). Moreover, a private 

plaintiff must be “aggrieved” by a Title VII violation. In 

common usage, “aggrieved” means “[h]aving suffered loss or 

injury.” Black’s Law Dictionary 87 (revised 4th ed., 1968). In 

civil-rights usage as well, an “aggrieved” person is one who 

has “been injured by” an unlawful practice. 42 U.S.C. 

§ 3602(i)(1) (Fair Housing Act definition). So, both the 

substantive and private-cause-of-action provisions of Title VII 

require a plaintiff to have been injured by an act of employment 

discrimination.
8

Not every workplace slight constitutes discrimination

against an aggrieved employee. As the Supreme Court has 

explained, “the venerable maxim de minimis non curat lex (‘the 

law cares not for trifles’) 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.” Wis. Dep’t of Rev. v. William Wrigley, Jr., 

Co., 505 U.S. 214, 231 (1992). Nothing in Title VII abrogates 

this background principle. To the contrary, as many courts 

have recognized, not every petty annoyance rises to the level 

of “discriminat[ion] against” an employee. Threat v. City of 

Cleveland, 6 F.4th 672, 678 (6th Cir. 2021) (Sutton, J.) (“To 

‘discriminate’ reasonably sweeps in some form of an adversity 

and a materiality threshold.”); Washington v. Ill. Dep’t of 

Revenue, 420 F.3d 658, 661 (7th Cir. 2005) (Easterbrook, J.)

(“Congress could make any identifiable trifle actionable, but 

the undefined word ‘discrimination’ does not itself command 

judges to supervise the minutiae of personnel management.”). 

For these reasons, a disparate-treatment plaintiff must prove an 

injury that is at least material in the sense of being more than 

de minimis.

The requirement of an objectively material injury is 

confirmed by the canon of ejusdem generis, “which limits 

general terms that follow specific ones to matters similar to 

those specified,” CSX Transp., Inc. v. Ala. Dep’t of Rev., 562 

U.S. 277, 294 (2011) (cleaned up). In section 703(a)(1), the 

term “otherwise to discriminate against” is a general phrase

that follows specific adverse employment actions—“to fail ... 

to hire,” to “refuse to hire,” or “to discharge.” Construing the 

statutory prohibition on age discrimination, which in pertinent 

part is identically worded, the Supreme Court has invoked 

ejusdem generis. Babb v. Wilkie, 140 S. Ct. 1168, 1176 n.4 

(2020). Because the specific verbs here denote employment 

actions that cause objectively material harm, the canon 
9

similarly focuses the phrase “otherwise to discriminate 

against.” To be sure, this phrase sweeps more broadly than the 

specific prohibitions regarding hiring and firing, but it is not a 

limitless catch-all for any workplace act, no matter how trivial. 

Brown finds further support in section 703(a)(1)’s 

limitation to acts regarding the “compensation, terms, 

conditions, or privileges of employment.” 42 U.S.C. § 2000e2(a)(1). Consider the Supreme Court’s interpretation of this 

language in cases involving workplace harassment. In that 

context, the Court has imposed materiality and objectivity 

requirements to screen out claims of insubstantial harm. To 

direct harassing conduct at members of one race or sex is to 

“discriminate against” the targets “because of” their race or 

sex. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 

(1986). Yet not all discriminatory workplace harassment 

violates section 703(a)(1). Instead, harassment is deemed to 

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

thus is actionable, only if it is “severe or pervasive” enough to 

create “an abusive working environment.” Id. at 67 (cleaned 

up). Moreover, this “severe or pervasive” requirement must be 

assessed “objectively,” in terms of how the harassment “would 

reasonably be perceived” by someone in the employee’s 

position. Harris v. Forklift Sys., 510 U.S. 17, 21–22 (1993). 

And this requirement “prevents Title VII from expanding into 

a general civility code.” Oncale, 523 U.S. at 81. These cases 

all make clear that some acts of harassment, even if 

discriminatory and in the workplace, do not “sufficiently affect 

the conditions of employment to implicate Title VII.” Harris, 

510 U.S. at 21–22.1

1 I do not mean to suggest that the severe-or-pervasive 

requirement developed in the harassment cases directly controls 

conventional claims of disparate treatment. Cf. ante at 12. Rather, 

my point is simply that the harassment cases understand the 
10

B

White, which imposes an objectively material harm 

requirement for retaliation claims under Title VII, cinches up 

the case for Brown. The Court rendered two distinct holdings

in White. First, because section 704(a) contains no “terms, 

conditions, or privileges of employment” requirement, 

actionable retaliation may take the form of adverse action 

outside the workplace. See 548 U.S. at 61–67. Second, 

because section 704(a) requires the employer to “discriminate

against” the plaintiff, it “protects an individual not from all 

retaliation, but from retaliation that produces an injury or 

harm.” Id. at 67. The Court then spelled out the nature of the 

requisite injury—the plaintiff “must show that a reasonable 

employee would have found the challenged action materially 

adverse, which in this context means it well might have 

dissuaded a reasonable worker from making or supporting a 

charge of discrimination.” Id. at 68 (cleaned up and emphases 

added). In justifying a “material adversity” standard, the Court 

held it “important to separate significant from trivial harms,” 

because Title VII “does not set forth ‘a general civility code for 

the American workplace.’” Id. (quoting Oncale, 523 U.S. at 

80). Likewise, an employee’s “decision to report 

discriminatory behavior cannot immunize that employee from 

those petty slights or minor annoyances that often take place at 

work and that all employees experience.” Id. In justifying a 

“reasonable employee” standard, the Court stressed that the 

conditions-of-employment requirement to screen out claims for 

objectively insubstantial injuries. For their part, my colleagues agree 

that this requirement must be “reasonably construed” to prevent Title 

VII from becoming a “‘general civility code’ for the workplace.” Id.

at 11 (quoting Oncale, 523 U.S. at 81). But they give no further 

guidance on how to distinguish which employment actions are 

material enough to affect the conditions of employment—the inquiry 

that we have long performed under Brown.
11

assessment of harm “must be objective,” to avoid “unfair 

discrepancies that can plague a judicial effort to determine a 

plaintiff’s unusual subjective feelings” and to conform to the 

“objective standards” used in other Title VII contexts such as 

constructive discharge and hostile work environment. Id. at 

68–69 (second emphasis added).

White’s second holding textually governs section 

703(a)(1). Like section 704(a), section 703(a)(1) makes it 

unlawful “to discriminate against” an individual for a 

prohibited reason. The Supreme Court has long recognized a 

“natural presumption that identical words used in different 

parts of the same act are intended to have the same meaning.” 

Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 

433 (1932). Although defeasible by context, this presumption 

of consistent usage applies most strongly where the two 

provisions are closely connected. See, e.g., Mohasco Corp. v. 

Silver, 447 U.S. 807, 826 (1980); A. Scalia & B. Garner, 

Reading Law: The Interpretation of Legal Texts § 25, at 171–

73 (2012). Here, sections 703(a)(1) and 704(a) appear almost 

immediately next to each other, at the beginning of the two 

most prominent sections of Title VII. They share many 

common words and phrases: Section 703, titled “Unlawful 

employment practices,” states in its subsection (a) that “[i]t 

shall be an unlawful employment practice for an employer—

(1) ... to discriminate against any individual” with respect to 

terms or conditions of employment “because of” the 

individual’s protected characteristics. 42 U.S.C. § 2000e2(a)(1). Section 704, titled “Other unlawful employment 

practices,” states in its subsection (a) that “[i]t shall be an 

unlawful employment practice for an employer to discriminate 

against” any employee or applicant for employment “because” 

that person has been involved in enforcing Title VII. Id.

§ 2000e-3(a). And the provisions are linked thematically as 

well as textually, given the Supreme Court’s holding that 
12

retaliation based on complaints of discrimination is itself a 

form of discrimination. Jackson v. Birmingham Bd. of Educ., 

544 U.S. 167, 173–74 (2005). For these reasons, because 

“discriminate against” requires an objectively material injury 

as used in section 704(a), it also requires an objectively 

material injury as used in section 703(a)(1).

White’s reasoning also carries over to section 703(a)(1). 

As to materiality, the need “to separate significant from trivial 

harms,” 548 U.S. at 68, applies to disparate-treatment claims

as well as to retaliation claims. To be sure, section 704(a)

applies to acts not affecting conditions of employment, and 

thus is broader than section 703(a)(1) in that one respect. See 

White, 548 U.S. at 61–63. But there is no necessary correlation 

between whether an adverse act relates to employment and 

whether it is substantial or trivial. Adverse acts outside the 

workplace may be quite serious, such as filing false criminal 

charges against an employee or failing to investigate death 

threats against her. See id. at 63–64. And adverse acts inside 

the workplace may be quite trivial, such as not allowing an 

attorney to submit her draft briefs “directly to a top supervisor.” 

Broderick, 437 F.3d at 1233. Moreover, White’s observation 

that an “objective standard” of materiality “is judicially 

administrable,” whereas a subjective one would produce 

“uncertainties and unfair discrepancies,” applies equally to 

harms alleged to flow from disparate treatment. See 548 U.S.

at 68–69. And White grounded its “objective standard” of harm

in the standards used “in other Title VII contexts” such as 

constructive discharge and hostile environment, both of which 

are actionable under section 703(a)(1). See id. at 69.

2

2

 My colleagues treat White’s second holding (that retaliation 

claims require an objectively material injury) as predicated on its first 

holding (that retaliation can involve adverse action unrelated to 

conditions of employment). Ante at 10–11. But the Court did not 
13

White also sheds light on the appropriate treatment of cases 

involving a reassignment of job responsibilities. The employee 

in White had been reassigned from “forklift duty” to seemingly 

less attractive “standard track laborer tasks” (which involved 

janitorial functionslike trash removal). 548 U.S. at 57, 70. The 

Court acknowledged that reassignments often impose 

objectively material harms, because “[a]lmost every job 

category involves some responsibilities and duties that are less 

desirable than others.” Id. at 70. Yet the Court also made clear 

that the plaintiff must prove the harm in each case. It stressed 

that “reassignment of job duties is not automatically 

actionable.” Id. at 71. And building on its harassment 

decisions, the Court explained that “[w]hether a particular 

reassignment is materially adverse depends upon the 

circumstances of the particular case, and ‘should be judged 

from the perspective of a reasonable person in the plaintiff’s 

position, considering all the circumstances.’” Id. (quoting 

Oncale, 523 U.S. at 81) (cleaned up). Not surprisingly, the 

Court found that material adversity in White itself was at least

a jury question, given the plaintiff’s evidence that the “forklift 

operator position was objectively considered a better job,” 

whereas the “track laborer duties were by all accounts more 

arduous and dirtier.” Id. (cleaned up).

C

At a higher level of generality, Brown, White, and the 

harassment cases simply spell out the contours of a statutory 

injury requirement, which courts do routinely. For example, 

the Supreme Court construes statutory causes of action 

extending to anyone “injured ... by reason of” a violation to 

frame its second holding as a limitation on the first one. Instead, the 

second holding interpreted the statutory phrase “discriminate 

against,” see 548 U.S. at 59–60, 67, which limits the scope of both 

section 704(a) and section 703(a)(1).
14

incorporate a background requirement of proximate causation. 

See, e.g., Holmes v. SIPC, 503 U.S. 258, 265–70 (1992) 

(RICO); Associated Gen. Contractors of Cal., Inc. v. Cal. State 

Council of Carpenters, 459 U.S. 519, 529–35 (1983) (Clayton 

Act). Likewise, although the Clayton Act on its face requires 

only an injury, the Court unanimously has construed it to 

require an “antitrust injury, which is to say injury of the type 

the antitrust laws were intended to prevent and that flows from 

that which makes defendants’ acts unlawful.” Brunswick Corp. 

v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977); see also

Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334–45

(1990); Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 

109–13 (1986). Although the Federal Employers Liability Act 

provides a cause of action to “any person suffering injury” from 

the negligence of a railroad while employed by the railroad, the 

Court has held that emotional harms qualify as an “injury” only 

if the plaintiff fell within a zone of physical danger. Consol.

Rail Corp. v. Gottshall, 512 U.S. 532, 542–57 (1994). The 

Administrative Procedure Act provides a cause of action to any 

person “aggrieved” by agency action—the same word used in 

Title VII’s private right of action—but the Court has held the 

plaintiff must fall “within the zone of interests to be protected 

or regulated by the statute or constitutional guarantee in 

question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 

397 U.S. 150, 153 (1970). The Court has also held that this 

zone-of-interest requirement “applies to all statutorily created 

causes of action,” Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 572 U.S. 118, 129–30 (2014), including 

section 706 and its “aggrievement requirement,” Thompson v. 

N. Am. Stainless, LP, 562 U.S. 170, 176–78 (2011).

Materiality and objectivity requirements, even if not 

explicitly spelled out in statutory text, are also common. The 

Supreme Court routinely presumes that anti-fraud statutes 

require materiality. Neder v. United States, 527 U.S. 1, 21–23
15

(1999); see Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757 

(7th Cir. 2009) (“Materiality is an ordinary element of any 

federal claim based on a false or misleading statement.”). And 

objectivity requirements follow from materiality requirements, 

which focus not on the idiosyncratic reactions of an individual 

plaintiff, but on the likely reactions of a reasonable person. See 

TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 445 (1976) 

(“[t]he question of materiality, it is universally agreed, is an 

objective one”). For example, consider the Fair Debt 

Collection Practices Act, which prohibits making “any false, 

deceptive, or misleading representation ... in connection with 

the collection of any debt.” 15 U.S.C. § 1692e. Despite the 

statute’s double use of the word “any,” courts widely agree that 

a misrepresentation must be material to be actionable, and the 

materiality standard “is an objective one.” Jensen v. Pressler 

& Pressler, 791 F.3d 413, 417–22 (3d Cir. 2015); see Elyazidi 

v. SunTrust Bank, 780 F.3d 227, 234 (4th Cir. 2015).

* * * *

In sum, Brown’s construction of section 703(a)(1) is amply 

supported by statutory text and numerous lines of Supreme 

Court precedent. Among other things, Brown honors the 

background maxim of de minimis non curat lex; it harmonizes

“otherwise to discriminate against” with the other covered 

adverse actions; it tracks the harassment cases’ understanding 

of “terms, conditions, or privileges of employment”; it tracks 

White’s construction of “discriminate against” as used in 

section 704(a); and it is consistent with the courts’ general 

interpretive authority to spell out the metes and bounds of 

express statutory injury requirements. For these reasons, 

Brown was rightly decided.
16

IV

The question presented is not simply whether Brown was 

rightly decided in 1999, but whether it should be overruled 

more than two decades later. The answer is clearly no.

A

“Overruling precedent is never a small matter.” Kimble v. 

Marvel Ent., LLC, 576 U.S. 446, 455 (2015). According to the 

Supreme Court, doing so requires a “‘special justification’—

over and above the belief ‘that the precedent was wrongly 

decided.’” Id. at 455–56 (quoting Halliburton Co. v. Erica P. 

John Fund, Inc., 573 U.S. 258, 266 (2014)). We too have 

recognized this basic principle of stare decisis. United States 

v. Burwell, 690 F.3d 500, 504 (D.C. Cir. 2012) (en banc); 

Critical Mass Energy Project v. NRC, 975 F.2d 871, 875–76

(D.C. Cir. 1992) (en banc). The Supreme Court further has 

stressed that “stare decisis carries enhanced force” for 

decisions interpreting statutes, because “Congress can correct 

any mistake it sees.” Kimble, 576 U.S. at 456; see Halliburton 

Co., 573 U.S. at 274; Patterson v. McLean Credit Union, 491 

U.S. 164, 172–73 (1989). We too have recognized the same 

principle, Burwell, 690 F.3d at 504; Critical Mass, 975 F.2d at 

875–76, which applies even more clearly to lower-court 

decisions correctable by Congress or the Supreme Court.

An overwhelming judicial consensus counsels against 

overruling Brown. When that case was decided, the authority 

for its rule was already “wide and deep.” See Brown, 199 F.3d 

at 455–56. Today the authority is vastly wider and deeper. As 

explained above, we have applied Brown in many cases inside 

and outside the job-transfer context, and our district court has

done so in scores if not hundreds more. Outside of this circuit, 

the courts of appeals now unanimously agree that a plaintiff 

must show objectively material harm to challenge a job transfer 
17

under section 703(a)(1). See, e.g., Caraballo-Caraballo v. 

Corr. Admin., 892 F.3d 53, 61 (1st Cir. 2018) (“We have 

recognized on several occasions that a transfer may constitute 

an adverse employment action.... However, not all transfers 

will suffice.”); Williams v. R.H. Donnelley, Corp., 368 F.3d 

123, 128 (2d Cir. 2004) (Sotomayor, J.) (“Williams thus must 

establish that Donnelley’s denial of her request for a transfer 

created a materially significant disadvantage in her working 

conditions.”); Oguejiofo v. Bank of Tokyo Mitsubishi UFJ Ltd, 

704 F. App’x 164, 168 (3d Cir. 2017) (plaintiff “failed to 

demonstrate that the lateral transfer was sufficiently material 

so as to qualify as adverse for purposes of his prima facie

case”); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 

376 (4th Cir. 2004) (reassignment is not actionable without 

“some significant detrimental effect” (cleaned up)); Pegram v. 

Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004) (“under 

Title VII principles, an employment transfer may qualify as an 

adverse employment action if the change makes the job 

objectively worse” (cleaned up)); Deleon v. Kalamazoo Cnty. 

Rd. Comm’n, 739 F.3d 914, 918 (6th Cir. 2014) (“a 

reassignment without salary or work hour changes” is 

actionable if accompanied by “a less distinguished title, a 

material loss of benefits, significantly diminished material 

responsibilities, or other indices that might be unique to a 

particular situation” (cleaned up)); O’Neal v. City of Chicago, 

392 F.3d 909, 913 (7th Cir. 2004) (“To sustain a federal 

employment discrimination suit, a plaintiff must show 

something more than the ordinary difficulties associated with a 

job transfer.”); Ledergerber v. Stangler, 122 F.3d 1142, 1144 

(8th Cir. 1997) (“A transfer involving only minor changes in 

working conditions and no reduction in pay or benefits will not 

constitute an adverse employment action.”); Chuang v. Univ.

of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1126 (9th Cir. 2000) 

(failure to respond to grievances “did not materially affect the 

compensation, terms, conditions, or privileges of the 
18

[plaintiffs’] employment”); Sanchez v. Denver Pub. Schs., 164 

F.3d 527, 532 n.6 (10th Cir. 1998) (“If a transfer is truly lateral 

and involves no significant changes in an employee’s 

conditions of employment, the fact that the employee views the 

transfer either positively or negatively does not of itself render 

the denial or receipt of the transfer adverse employment 

action.”); Kidd v. Mando Am. Corp., 731 F.3d 1196, 1204 n.11

(11th Cir. 2013) (“it’s a rare case where a change in 

employment responsibilities qualifies as an adverse 

employment action”). Moreover, “hundreds if not thousands 

of decisions” have stated that an “adverse employment action,” 

which is shorthand for an action with a material impact on the 

terms or conditions of employment, is “essential” to making 

out a prima facie case of discrimination under McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Threat, 6 

F.4th at 678–79; Minor v. Centocor, Inc., 457 F.3d 632, 634 

(7th Cir. 2006). The sample string-cite set out above could thus 

easily be expanded to go on for pages. And before today’s 

decision, no contrary authority existed.

Despite this mountain of authority, Congress has 

expressed no dissatisfaction with Brown or its out-of-circuit 

counterparts. Since 1964, it has amended Title VII on several 

occasions, including three times to overrule at least ten judicial 

decisions of which it disapproved. See Lilly Ledbetter Fair Pay 

Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (overruling 

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 

(2007)); Civil Rights Act of 1991, Pub. L. No. 102-166, 105 

Stat. 1071 (overruling eight decisions, as described in Landgraf 

v. USI Film Prods., 511 U.S. 244, 250–51 (1994)); Pregnancy

Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 

(overruling Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976)). 

The fact that “Congress has spurned multiple opportunities” to 

overrule the Brown line of cases cuts against our doing so. 

Kimble, 576 U.S. at 456; see Watson v. United States, 552 U.S. 
19

74, 82–83 (2007). To be sure, some justices have raised strong 

objections to inferring acquiescence based on congressional 

silence. See, e.g., Johnson v. Transp. Agency, 480 U.S. 616, 

671–72 (1987) (Scalia, J., dissenting). And one astute 

commentator has explained that such an inference is more 

tenuous where lower-court decisions are at issue. Barrett, 

Statutory Stare Decisis in the Courts of Appeals, 73 Geo. 

Wash. L. Rev. 317, 331–35 (2005). But if there was ever a case 

for attributing interpretive significance to congressional silence 

in the face of lower-court decisions, this is it—with decadeslong unanimity, reaching into every circuit and extending over 

hundreds of cases, in addressing the core provision of one of 

the most visible statutes in the entire United States Code. See

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200–01

(1974) (“continued congressional silence” has force where the 

circuits had interpreted a statute with “almost perfect 

consistency” for “nearly four decades”). And even attributing 

no affirmative significance to congressional silence in this 

case, the breadth and depth of support for Brown is itself good 

reason to proceed with care.

B

My colleagues give three reasons for overruling Brown 

despite all of this. None is persuasive. 

1

My colleagues would overrule Brown because they view 

it as “fundamentally flawed.” Ante at 16. The short answer is 

that Brown is not flawed at all, much less fundamentally so. 

Yet even if Brown were fundamentally flawed, that would 

hardly be a sufficient ground for overruling it. As noted above, 

the Supreme Court requires a “special justification” for 

overruling precedent, apart from its having been wrongly 

decided. See, e.g., Kimble, 576 U.S. at 455–56. Justice 
20

Thomas has forcefully laid out the competing view that 

precedent should be overruled, without anything more, if it is 

“demonstrably erroneous.” Gamble v. United States, 139 S. Ct. 

1960, 1981 (2019) (Thomas, J., concurring). But the Supreme 

Court has not yet accepted this view, and so neither may we.

As mentioned, our cases have also recognized that 

overruling precedent requires a “special justification” apart 

from strong disagreement with the merits. Burwell, 690 F.3d 

at 504; Critical Mass, 975 F.2d at 875–76. To be sure, these 

same decisions, together with Allegheny Defense Project v. 

FERC, 964 F.3d 1 (D.C. Cir. 2020) (en banc), suggest that 

precedent may be overruled simply because it is 

“fundamentally flawed.” See id. at 18. But Burwell and 

Critical Mass both declined to overrule precedents. See 690 

F.3d at 516; 975 F.2d at 875–77. And Allegheny overruled a 

statutory precedent not only because we viewed it as wrongly 

decided, but also because a later Supreme Court decision 

contradicted it on the exact question presented—whether an 

agency should receive deference in interpreting statutes 

addressed to federal-court jurisdiction. See 964 F.3d at 18 

(citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–50 

(1990)). To my knowledge, our only decision overruling 

circuit precedent based solely on a view that it was wrong is 

Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 

1516, 1518–25 (D.C. Cir. 1988) (en banc). But the precedent 

at issue there was only four years old, and it had nothing like 

the breadth and depth of support for Brown. Moreover, 

Cumberland Mountains can hardly be taken as itself a 

persuasive precedent on precedent, for the Court’s analysis 

contained not a single word about stare decisis.

My colleagues view Brown as inconsistent with the 

Supreme Court’s increasing emphasis on the primacy of 

statutory text. Ante at 16–17 (citing Allegheny, 964 F.3d at 18). 
21

They describe this as a fundamental flaw with Brown, whereas 

Allegheny had framed a similar concern as one of inconsistency 

with intervening precedent. Either way, this methodological 

criticism of old precedents cannot be enough to justify their 

overruling. For many past decades, we were not all textualists.3

 

Under the “ancien regime,” the Supreme Court often created 

private rights of action with little basis in statutory text. 

Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (citing J.I. 

Case Co. v. Borak, 377 U.S. 426, 433 (1964)). It often looked 

to legislative history before statutory text. See, e.g., Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29 

(1971). And it often divined statutory “spirit” to expand or 

contract statutes beyond their most natural reading, including 

in a landmark decision interpreting section 703(a)(1) itself. 

United Steelworkers of Am. v. Weber, 443 U.S. 193, 201 (1979)

(quoting Church of the Holy Trinity v. United States, 143 U.S. 

457, 459 (1892)). In this “bygone era,” this Court likewise 

followed a “more freewheeling approach to statutory 

construction.” Wooden v. United States, 142 S. Ct. 1063, 1085 

(2022) (Gorsuch, J., concurring in the judgment) (cleaned up). 

Many of our cases recognized implied rights of action, e.g., 

Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 

419–25 (D.C. Cir. 1992); Wachovia Bank & Tr. Co., N.A. v. 

Nat’l Student Mktg. Corp., 650 F.2d 342, 353 (D.C. Cir. 1980); 

relied mainly on legislative history, e.g., NRDC, Inc. v. Costle, 

568 F.2d 1369, 1373 (D.C. Cir. 1977); NRDC, Inc. v. Train, 

510 F.2d 692, 698–702 (D.C. Cir. 1974); or freely consulted 

statutory “spirit,” e.g., Gen. Serv. Emps. Union Loc. No. 73 v. 

NLRB, 578 F.2d 361, 366–67 (D.C. Cir. 1978); Manoukian v. 

Tomasian, 237 F.2d 211, 213–14 (D.C. Cir. 1956). Are all such

3

 Cf. Harvard Law School, The Antonin Scalia Lecture Series: 

A Dialogue with Justice Elena Kagan on the Reading of Statutes, 

YouTube at 08:28 (Nov. 25, 2015), https://www.youtube.

com/watch?v=dpEtszFT0Tg (“We are all textualists now.”). 
22

precedents now to be overruled, either as fundamentally flawed 

or as inconsistent with the New Textualism? If so, our en banc 

Court will be very busy indeed.

2

My colleagues next contend that intervening cases have

substantially weakened Brown. Ante at 17. But the passage of 

time has only made Brown stronger. Circuit after circuit has 

followed its rule. And White strongly reinforced Brown by 

construing the phrase “discriminate against” in section 704(a)

to incorporate the same objectively material injury requirement 

that Brown held was present in section 703(a)(1).

My colleagues argue that White undercut Brown in a 

different way. They reason that Brown invoked Ellerth as 

support for requiring section 703(a)(1) plaintiffs to prove 

tangible injury, whereas White later described Ellerth as 

requiring such an injury only to identify when an employer is 

automatically liable for the workplace harassment of a 

supervisor. Ante at 8–9. Brown was imprecise in framing a 

rule requiring “materially adverse consequences” producing an 

“objectively tangible harm,” 199 F.3d at 457 (emphasis added), 

rather than one requiring a harm that is material when viewed 

objectively, the key elements that I have discussed and 

defended above. But this garbling was introduced by Ellerth, 

not Brown, and the misleading adjective tangible has proven 

harmless in our Brown jurisprudence. Also, none of this 

undercuts Brown’s invocation of Ellerth, or White’s 

reinforcement of Brown.

To unpack all this, consider the sequence of relevant cases. 

Before Ellerth was decided, there were already legions of cases 

holding that a plaintiff challenging a job transfer as 

discriminatory must prove some objectively material harm. 

See, e.g., Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 
23

(6th Cir. 1996) (“reassignments without salary or work hour 

changes do not ordinarily constitute adverse employment 

decisions in employment discrimination claims”); Flaherty v. 

Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994) (Age 

Discrimination in Employment Act does not cover “changes in 

duties or working conditions that cause no materially 

significant disadvantage to an older employee” (cleaned up)); 

Crady v. Liberty Nat’l Bank & Tr. Co. of Ind., 993 F.2d 132,

136 (7th Cir. 1993) (“a materially adverse change in the terms 

and conditions of employment must be more disruptive than a 

mere inconvenience or an alteration of job responsibilities”); 

Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th 

Cir. 1994) (“Changes in duties or working conditions that cause 

no materially significant disadvantage, such as Harlston’s 

reassignment, are insufficient to establish the adverse conduct 

required to make a prima facie case.”).

Next in the sequence came Ellerth—which did, as White

would later explain, address the question of vicarious liability. 

The Court used tangible to describe the harassing acts of a 

supervisor for which an employer is automatically liable—i.e., 

those fairly treated as official acts of the employer itself. 524 

U.S. at 761–62. In doing so, it described the four cases cited 

above as illustrating the “concept of a tangible employment 

action,” and then deemed it “prudent to import the concept of 

a tangible employment action for resolution of the vicarious 

liability issue.” Id. at 761. Ellerth thus introduced some 

confusion between “tangible” as a synonym for “material,” the 

standard used in the prior cases to determine the substantive 

scope of section 703(a)(1) and its analogs in other antidiscrimination statutes, and “tangible” as shorthand for official 

acts that make an employer automatically liable.

Next came Brown. First, it correctly cited the four cases 

noted above (plus twelve others) for the proposition that “the 
24

authority requiring a clear showing of adversity in employee 

transfer decisions is both wide and deep.” 199 F.3d at 455–56. 

Brown then claimed that Ellerth had “reinforced” this authority 

by invoking it to “announce[] a ‘tangible employment action’ 

standard in cases of vicarious liability.” Id. There was nothing 

wrong with this reasoning; Brown correctly summarized 

Ellerth, and the Supreme Court’s extending a line of cases from

one context to another does tend to reinforce the cases. Finally, 

Brown announced its “rule” that a lateral transfer is actionable 

only if the employee suffers “materially adverse” 

consequences producing “objectively tangible” harm. Id. at 

457. In context, this formulation seems to reflect nothing more 

than Ellerth’s ambiguous use of tangible. To be sure, it would 

have been wrong for Brown to announce a categorical rule that 

only “tangible” harms are actionable under section 703(a)(1), 

for the hostile-environment cases prove otherwise. But Brown

announced no such rule. To the contrary, it carefully explained 

that “[a]fter Meritor, plaintiffs could maintain an action even 

in the absence of a tangible economic effect on employment,” 

if they were subjected to sufficiently severe harassing conduct. 

Id. at 454. The key takeaway is that Brown’s reference to 

“objectively tangible” harm (as opposed to objectively material 

harm) reflects some muddling from Ellerth and has had no 

distorting effect on Brown’s materiality-based jurisprudence.

Last came White, which clarified that Ellerth had used the 

concept of a “tangible employment action” only to decide when 

an employer should be held automatically liable for the 

harassment of a supervisor, without addressing other questions 

under section 703(a)(1) or any question under section 704. 548 

U.S. at 64–65. The clarification does not undercut Brown’s 

point that Ellerth, by extending “wide and deep authority” from 

the disparate-treatment context to the context of vicarious 

liability for harassment, tended to strengthen that authority. 

Nor does it say anything about White’s recognition of an
25

objectively material harm standard for retaliation cases, which 

affirmatively reinforces Brown as explained above.

3

Finally, my colleagues contend that Brown has proven unadministrable. Surveying the vast bulk of precedent applying 

the Brown rule, they portray the relevant law as chaotic, and 

the courts as speaking “with discordant voices.” Ante at 17.

My colleagues significantly overstate the extent of any

conflict. For example, they suggest that the Fifth Circuit stands 

alone in requiring the plaintiff to prove an “ultimate” 

employment decision. Ante at 17; see McCoy v. City of 

Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (per curiam). 

But the Fifth Circuit classifies transfers as actionable 

demotions “if the new position proves objectively worse—such 

as being less prestigious or less interesting or providing less 

room for advancement.” Alvarado v. Texas Rangers, 492 F.3d 

605, 612–13 (5th Cir. 2007) (cleaned up). In substance, that is 

the Brown rule. My colleagues suggest that two cases from the 

Seventh Circuit set the injury bar distinctively high. Ante at 

18; see EEOC v. AutoZone, Inc., 860 F.3d 564 (7th Cir. 2017); 

Place v. Abbott Lab’ys, 215 F.3d 803 (7th Cir. 2000). But the 

Seventh Circuit recognizes that “adverse actions can come in 

many shapes and sizes,” so transferring an employee to “a more 

unfriendly working environment” might constitute an 

actionable injury, depending on the circumstances. Place, 215 

F.3d at 810 (quoting Knox v. Indiana, 93 F.3d 1327, 1334 (7th 

Cir. 1996)). Likewise, my colleagues suggest that Threat, 

which held that a challenged transfer to the night shift was 

actionable, conflicts with other decisions rejecting challenges 

to shift transfers. Ante at 18–19; see 6 F.4th at 679–80. But 

Threat announced no broad rule that all shift-transfer claims 

are actionable. Instead, it expressly disclaimed any such
26

“categorical rule,” because “[n]ot all shift changes are the 

same.” Id. at 679. It is hardly surprising that different courts, 

applying a qualitative requirement of objectively material 

injury, have reached different results on different facts in 

different cases. And even if there were narrow disagreements 

about whether specific harms qualify as objectively material

injuries, that would hardly justify what we do today—create an 

eleven-to-one split on the anterior, much broader question 

whether the plaintiff must prove such an injury at all.

The administrability objection suffers from a further 

problem. An inquiry into whether a transfer caused the 

plaintiff an objectively material harm is precisely what White 

requires for retaliation claims under section 704(a). If that 

inquiry can and must be managed, then so too can the same 

inquiry for disparate-treatment claims under section 703(a)(1). 

Indeed, some of the cases that my colleagues invoke to show 

unmanageability involve the White-mandated inquiry for 

actionable injury under section 704(a). E.g., Forkkio, 306 F.3d 

at 1131–32; Halcomb v. Off. of the Senate Sergeant-at-Arms, 

563 F. Supp. 2d 228, 239, 245–49 (D.D.C. 2008). And in many 

cases, including this one, the same acts are alleged to be both 

discriminatory and retaliatory. There is no theoretical or 

practical reason why we should make the materiality inquiry in 

one context but not the other.

V

Finally, a few words about the breadth and consequences 

of today’s decision. My colleagues acknowledge that Title VII 

must not become a “general civility code” for the workplace. 

Ante at 11. To that end, they limit today’s decision in some

respects: By its terms, the decision applies only to “job 

transfers” as opposed to other, less significant workplace 

actions. Id. at 20. My colleagues reserve whether the de 
27

minimis canon narrows the range of actionable injuries under 

section 703(a)(1). Id. at 8. They assure us that the “terms, 

conditions, or privileges of employment” requirement can be 

“reasonably construed” to weed out insubstantial claims. Id. at 

11. And they remind us that the plaintiff still must prove the 

employer undertook the challenged action for a prohibited 

reason. Id. at 13–14. But the logic of Brown extends well 

beyond transfers, and we currently have no precedent on how 

to apply the de minimis canon here or how to construe the 

“terms, conditions, or privileges of employment” requirement 

outside the context of hostile-environment claims. Finally, the 

requirements for proving discriminatory intent are both modest 

and unrelated to the question whether any injury is objectively

substantial. So today’s decision may well be sweeping, and it 

certainly will be destabilizing.

A

In focusing on job transfers, the decision has at least 

superficial appeal. Surely in most cases, an unwanted transfer 

to a new position, or the denial of a wanted transfer, will inflict 

some objectively material harm on an employee. And if so, 

why not simplify things by dispensing with the need to prove 

an injury for this category of employment actions?

As with much in this appeal, the simplest answer is White. 

The Court there recognized that cases involving “reassignment 

of job duties” are very likely, as a group, to create objectively 

material injuries. See 548 U.S. at 70 (“Almost every job 

category involves some responsibilities and duties that are less 

desirable than others.”). Yet the Court nonetheless held that 

“reassignment of job duties is not automatically actionable,” 

and so the requisite harm must be proven in “the circumstances 

of the particular case.” Id. at 71.
28

Our own experience with Brown highlights the differences 

among transfer cases. Most job-transfer plaintiffs have

suffered some objectively material injury and can readily prove 

it. See, e.g., Ortiz-Diaz, 867 F.3d at 74; Pardo-Kronemann, 

601 F.3d at 608; Ginger, 527 F.3d at 1344. But some plaintiffs 

have suffered no such harm: one whose transfer simply cut him 

out of certain meetings and e-mails, see Forkkio, 306 F.3d at 

1131; another who “went from a position before the [reduction 

in force] with no duties to a position after the RIF with some 

duties,” see Currier, 304 F.3d at 88–89; and a third whose 

transfer caused only “minor changes in work-related duties or 

opportunities,” see Stewart, 275 F.3d at 1135. Other plaintiffs 

allege, but cannot prove, objectively material harms. For 

example, Chambers argued that the denial of her requested 

transfer “resulted in lost awards and career advancement 

opportunities.” 988 F.3d at 501. That would be an actionable 

injury under Brown, but Chambers failed to prove the

allegation. See id. at 502. Similarly, Chambers argued that the 

transfer denial forced her to remain in an “unbearable” 

situation with a “disproportionate” number of cases. Id. That

might satisfy Brown if the workload difference was significant, 

but Chambers failed to prove that her caseload would be any 

lower in the unit to which she had sought a transfer. See id.

B

Broadening the focus, job transfers are not a distinct 

category of employment actions, either legally or factually. 

Legally, section 703(a)(1) covers discriminatory decisions “to 

fail or refuse to hire or to discharge any individual, or otherwise 

to discriminate against any individual” in the terms or 

conditions of employment. 42 U.S.C. § 2000e-2(a)(1). So 

there is no textual basis for categorically distinguishing 

between transfers and anything else covered by the phrase “or 

otherwise to discriminate.” Nor is there any sharp factual 
29

distinction between transfers and other kinds of decisions 

affecting an employee’s day-to-day work.

My colleagues confine today’s decision to cases involving 

“the transfer of an employee to a new role, unit, or location.”

Ante at 5–6. But this raises its own set of line-drawing 

challenges. To qualify as such a transfer, does the move have 

to be permanent? If not, for how long must it last? How much 

does the job have to change to constitute a “new role”? My 

colleagues tell us that a transfer from selling sporting goods to 

selling power tools at the same department store would qualify, 

id. at 13–14, but what about a transfer from selling sports 

equipment to sportswear? Or from selling hunting rifles to 

pistols? Or snow skis to snowboards? Must the positions in 

question be formally different, or is it enough that the employer 

simply imposes a change of duties within the employee’s 

current job description? If the job description stays the same 

but the supervisor changes, is that a “new unit”? What if 

employers broadly define the scope of a position, so that many 

duties can be part of that job as opposed to a transfer? Rather 

than creating this artificial distinction between transfers and 

everything else, it seems simpler to ask more directly the 

question that matters most—whether the change at issue has 

materially harmed the employee.4

4 My colleagues characterize transfer refusals as the “functional 

equivalent” of a refusal to hire “for a particular position.” Ante at 6–

7. That is certainly a plausible characterization of many transfer 

refusals, which is why plaintiffs challenging such refusals have 

generally cleared the Brown hurdle. See supra at 4–5. But it does 

not seem to me a plausible characterization of edge cases like, say, a 

compelled or refused transfer from selling snow skis to snowboards. 

As explained above, the analysis of such cases should turn on 

whether the compelled or denied transfer inflicts an objectively 
30

Moreover, neither the logic of Brown itself, nor the logic 

of today’s opinion overruling it, can be limited to the artificial 

category of job transfers. Simplifying a bit, the core argument 

for Brown is that the statutory phrases “discriminate against,”

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

“aggrieved” incorporate an objectively material injury 

requirement. In overruling Brown, my colleagues reject that

proposition and reserve only the possibility of a de minimis

exception. None of these interpretive disputes turns on the 

distinction between job transfers and other kinds of 

employment actions. So the limitation of today’s decision to 

transfers seems to me illusory on the law, on the facts, and on 

my colleagues’ own reasoning.

C

If extended beyond the vague category of job transfers, 

today’s decision would be revolutionary. As noted above, we 

repeatedly have applied Brown to screen out cases involving 

objectively insubstantial injuries alleged to flow from gardenvariety workplace assignments and interactions. See Baird, 

662 F.3d at 1248 (critical comments and shouting); Douglas, 

559 F.3d at 553 (failure to recommend for award); Patterson, 

505 F.3d at 1298 (employee subjectively “fe[lt] undermined”

(cleaned up)); Broderick, 437 F.3d at 1233 (lost opportunity to 

submit briefs “directly to a top supervisor”); Taylor, 350 F.3d 

at 1292–93 (placement on performance improvement plan);

Russell, 257 F.3d at 818–19 (poor performance rating). District 

judges in our circuit have applied Brown to do likewise. See, 

e.g., Guillen-Perez v. District of Columbia, 415 F. Supp. 3d 50, 

58 (D.D.C. 2019) (scheduling decisions, increased scrutiny, 

and verbal criticism); Allen v. Napolitano, 943 F. Supp. 2d 40, 

45–46 (D.D.C. 2013) (conducting meetings without an 

material harm on the employee, not on how the employer formally 

classifies the positions or job duties at issue.
31

employee); Hunter v. District of Columbia, 905 F. Supp. 2d 

364, 374 (D.D.C. 2012) (10 days of paid administrative leave 

and required fitness examination); Kelly v. Mills, 677 F. Supp. 

2d 206, 221 (D.D.C. 2010) (supervisor’s failure to speak 

Spanish, leave handwritten notes, or invite employee into his 

office); Halcomb, 563 F. Supp. 2d at 241 (low performance 

ratings and increased supervision); Hunter v. Rice, 480 F. 

Supp. 2d 125, 132–33 (D.D.C. 2007) (refusing to increase 

signing authority for grants); Edwards v. EPA, 456 F. Supp. 2d 

72, 85 (D.D.C. 2006) (denial of single training or travel 

opportunity); Rhodes v. Chertoff, Civ. A. No. 04-1715, 2005 

WL 3273566, at *6 (D.D.C. Aug. 4, 2005) (oral counseling for 

poor performance); Moncrief v. Daro Realty, Inc., Civ. A. No. 

03-762, 2005 WL 1119794, at *11 (D.D.C. Apr. 28, 2005)

(failure to provide company cell phone); Dobbs v. Roche, 329 

F. Supp. 2d 33, 42 (D.D.C. 2004) (change in duties over threemonth transition period); Brodetski v. Duffey, 141 F. Supp. 2d 

35, 45 (D.D.C. 2001) (uneven workload distribution). At oral 

argument, we discussed hypotheticals involving everything 

from coffee duty to the assignment of offices with windows. 

These are just some of the ordinary workplace snubs that 

Brown and White would screen out as “petty slights or minor 

annoyances that often take place at work and that all employees 

experience.” White, 548 U.S. at 68. Yet now, they all may 

support litigation under Title VII and various similarly worded 

statutes such as the ADEA and the Americans with Disabilities 

Act. See Brown, 199 F.3d at 456 n.10.5

 Even with Brown in 

5 My colleagues invoke the very different hypothetical of an 

employer hosting a weekly doughnut day and hanging a “whites 

only” sign over the doughnuts. Ante at 13. Although evocative, this 

one is unrelated to any case decided under Brown. And for good 

reason: Such an employer would violate section 703(a)(1), which 

prohibits “the practice of creating a working environment heavily 
32

place, employees annually file more than 60,000 charges with 

the EEOC and more than 10,000 discrimination cases in court. 

U.S. District Courts—Civil Cases Commenced, by Basis of 

Jurisdiction and Nature of Suit, U.S. Courts (Dec. 31, 2021); 

EEOC, Charge Statistics FY 1997 Through FY 2021. Without

a meaningful injury requirement, who knows how much those 

numbers will increase?

The requirement to prove discriminatory intent will not 

solve this problem. Bad intent is easy to allege, and intent is 

much harder to assess early on than is the question whether an 

alleged injury is objectively material. Consider the familiar 

doctrines governing proof of intent. At the pleading stage, a 

Title VII plaintiff need not even allege a prima facie case. 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). On a 

motion to dismiss, the court must accept the truth of all factual 

allegations, and the inference of bad intent need only be 

“plausible”—a modest standard falling well short of more 

likely than not. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

After the motion-to-dismiss stage, the burden-shifting 

framework of McDonnell Douglas complicates things even

more. Under that framework, the “burden of establishing a 

prima facie case of disparate treatment is not onerous.” Tex. 

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 

And once an employee carries this burden, the employer will 

lose the case—as a matter of law—unless it can produce 

evidence of a “legitimate, nondiscriminatory reason” for its 

action. Id. at 254. This framework is sensible enough for 

assessing the intent behind significant actions such as hiring or 

firing, which employers can reasonably be expected to 

document with care. But for claims that Brown would have 

screened out as immaterial, this is highly unrealistic. Must an 

charged with ethnic or racial discrimination.” Meritor, 477 U.S. at 

66 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).
33

employer really document the reasons for every workplace 

interaction from temporary assignments to scheduling 

decisions? How can an employer possibly reconstruct, in 

litigation months if not years after the fact, the “legitimate, 

nondiscriminatory reason” for any such miniscule decision? 

And because intent is often hard to prove or disprove, a

frustrated employee might as well take his chances in litigation. 

A screen for objectively insubstantial injury is thus necessary 

to keep Title VII claims within manageable limits.

To close the floodgates, my colleagues stress that not all 

workplace interactions involve terms, conditions, or privileges

of employment, and they dangle the possibility that de minimis 

injuries may not be actionable in any event. But precisely 

because we have screened out objectively insubstantial claims 

under Brown for more than two decades, we have not had

occasion to build up, in this context, a jurisprudence directly 

resting on de minimis non curat lex. Likewise, our extant 

caselaw has imposed limits on what counts as terms, 

conditions, or privileges of employment only in the specific 

context of hostile-environment claims. So what happens next, 

as courts in non-transfer cases are confronted with claims that 

Brown would have screened out for lack of an objectively 

material injury? Instead of saying “the injury is not actionable 

under Brown,” may a judge instead simply say “the injury is de 

minimis under Wisconsin v. Wrigley” or “the injury is not

substantial enough to affect a condition of employment”? 

Automatically exporting Brown standards to either context 

would seem in tension with the spirit if not the letter of today’s 

opinion, which does not confirm even the existence of a de 

minimis exception. But preventing the export of Brown 

standards to either context would negate my colleagues’ 

promise of manageable limits. And leaving everything to be 

decided afresh, under a new de minimis jurisprudence or a new, 

non-harassment terms-and-conditions jurisprudence, would 
34

eliminate two decades of judicial experience in distinguishing 

substantial harms from insubstantial ones.

Why create this degree of uncertainty? My colleagues

worry that Brown has screened out too much. Yet as shown 

above, it has screened out relatively few claims arising from 

clear job transfers as opposed to lesser kinds of employment 

actions. Perhaps, as my colleagues assert, some job-transfer 

cases have applied Brown too stringently. Ante at 8. But any 

such cases are the exception, not the rule. Rather than 

jettisoning two decades of our Title VII jurisprudence and 

starting over from scratch, I would have simply reminded the 

courts that the requirement of an objectively material injury, 

although important, is not especially onerous.

VI

The Court badly errs in overruling Brown, and so I 

respectfully dissent.