JATONYA CLAYBORN MULDROW, Petitioner, v. CITY OF ST. LOUIS, MISSOURI, ET AL., Respondents
Interviewer(s): Samuel A. Alito, Jr., Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Sonia Sotomayor, Ketanji Brown Jackson, Brett M. Kavanaugh, Amy Coney Barrett, Clarence Thomas
Interviewee(s): Aimee W. Brown, Robert M. Loeb, Brian Wolfman

John G. Roberts, Jr.: We'll hear argument this morning in Case 22-193, Muldrow versus the City of St. Louis. Mr. Wolfman.

Brian Wolfman: Mr. Chief Justice, and may it please the Court: Jatonya Muldrow maintains she was transferred from the Intelligence Division to a different job in the Fifth District because she's a woman.

That's sex discrimination, and it's unlawful under the plain terms of Title VII. Title VII bars an employer from discriminating against an employee with respect to the terms, conditions, or privileges of her employment because of the employee's sex. Respondent now concedes that a lateral transfer changes the terms, conditions, or privileges of employment.

After all, a transferred employee cannot show up the next day and do her old job. Her job tasks have changed, and that's the most basic term of employment. So the only question left is whether transferring an employee because of sex is discrimination against that person.

It is. "Discrimination against" by its ordinary meaning and under this Court's precedent means worse treatment because of a protected characteristic. With that, statutory analysis is complete, which brings us to what 703(a)(1) does not do.

It doesn't require that an employer's conduct cause significant disadvantage, objective material harm, objective tangible harm, or the like.

And contrary to the Eighth Circuit's understanding, as this Court observed in Teamsters, Title VII provides for equal opportunity to compete for any job, whether it is thought better or worse than another.

The statute prohibits discrimination, period. If an employer transfers an employee because of a protected characteristic, that's discrimination, and it's prohibited by Title VII. The Court should reverse and allow Ms. Muldrow to prove her case. I welcome the Court's questions.

Clarence Thomas: Counsel, you said that -- in -- in your opening remarks that worse treatment against a protect -- member of a protected class is a Title VII violation.

What is the worse treatment here?

Brian Wolfman: The worse treatment here is the discrimination itself.

So differential treatment and worse treatment are almost in very -- invariably coterminous.

And, here, the worse treatment is she was treated differently than a male employee in the same circumstances, and we are prepared to prove that if we're given the opportunity.

Clarence Thomas: So the -- it doesn't matter if her salary is the same, the work arrangements are the same.

I know you -- your argument in the briefs is that her assignments changed, but her pay did not and her rank did not.

But none of that is necessary for you under -- in your -- under your argument to make a claim.

Brian Wolfman: That is correct, Your Honor.

Clarence Thomas: The mere transfer is enough?

Brian Wolfman: Well, the -- the transfer -- we wouldn't say "mere" in this particular case with respect, Your Honor, but --

Clarence Thomas: Well, transfer alone.

Brian Wolfman: -- but the transfer itself makes the claim actionable if she was treated differently than a male employee would be under the same circumstances.

Clarence Thomas: So what work does the preposition "against" provide?

Brian Wolfman: It -- it provides that the treatment has to be worse, and there may be circumstances which --

Clarence Thomas: So how is it worse --

Brian Wolfman: -- limited circumstances --

Clarence Thomas: -- though? I mean, you're saying two things.

One, you say that the mere transfer is enough and "against" adds nothing, or it may -- or it requires that the treatment be worse.

But I don't -- beyond the mere transfer, you don't argue that you need anything else.

Brian Wolfman: That is correct with respect to -- that is absolutely correct.

Clarence Thomas: So what work does "against" do?

Brian Wolfman: The -- the word "against" is -- is indicating that the -- the operation of the conduct is against this particular employee.

So that's the work that the -- the word "against" is doing. It could be -- it could be that it's just for emphasis, and there may be limited circumstances, as this Court indicated in Bostock, where, you know, different treatment among men and women is not necessarily discrimination. But, by and large, when a -- a male employee, if we're taking sex discrimination, is treated differently from a female employee in similar circumstances or would be treated differently, that's discrimination against, in this case, the female employee.

Elena Kagan: You refer --

John G. Roberts, Jr.: Well --

Elena Kagan: -- to Bostock --

John G. Roberts, Jr.: Go ahead.

Elena Kagan: You refer to Bostock, and Bostock says the term "discriminate against" refers to distinctions or differences in treatment that injure protected individuals.

So that formulation suggests that there are distinctions or differences in treatment that don't injure protected individuals, in other words, that -- that the injury is a added thing that one has to show in a discrimination suit. Do you not read that statement that way?

Brian Wolfman: I do not.

I think, generally speaking, the -- the injury is the discrimination itself.

That's this Court's decision in Heckler versus Mathews.

Elena Kagan: I mean, it's a funny sentence to write if that's what we thought, and then we can talk about whether -- in fact, we can think about many kinds of distinctions and differences that don't injure anybody, but -- or that don't injure the -- the -- that person at least. But it's a -- it's a funny sentence to write, distinctions or differences in treatment that injure protected individuals, if you think that all distinctions and differences injure protected individuals.

Brian Wolfman: Well, not necessarily all distinctions, but the way I would put it is that in the vast majority of circumstances, differential treatment and worse treatment are going to be the same thing, and that is that -- that injury is going to occur in the vast majority of circumstances when there is discrimination. That's this Court's decision, I -- I believe, in Heckler versus Mathews.

That's in a sense a premise of the Brown decision, that, you know, discrimination itself is injurious.

Ketanji Brown Jackson: And isn't --

John G. Roberts, Jr.: Well, that's --

Ketanji Brown Jackson: -- isn't "terms and conditions of employment" doing some work as well? I mean, you -- you say that that's a conceded part of the statute, and I -- with respect to how they're interpreting it, and I understand that, but I would guess that differential treatment with respect to the terms and conditions of employment may be what you mean when you say that --

Brian Wolfman: Well --

Ketanji Brown Jackson: -- discrimination is happening in and of itself.

Brian Wolfman: -- that -- that is correct in this sense.

I -- I believe I -- I -- I take the -- your understanding here, which is that "terms, conditions, and privileges" are -- is -- are a limiting principle within 703(a)(1), which is what the D.C. Circuit said in -- in the Chambers case.

That's -- that's the work that "terms, conditions, and privileges" are doing. So the -- the statute --

Ketanji Brown Jackson: But I guess I'm -- I'm sort of --

Brian Wolfman: -- does not reach conduct outside the workplace.

Ketanji Brown Jackson: I -- I -- I know, but I guess I'm inviting you to think about "discriminate against" as Justice Kagan was positing it.

You know, she's -- she's highlighted a distinction between discrimination against someone that injures them versus discrimination that might not injure them. And I'm just wondering whether the fact that we're in the context of terms and conditions of employment does any work with respect to a -- a -- a determination that discrimination, differential treatment in this context, terms and conditions of employment, is inherently injurious from the -- the standpoint of the point that Justice --

Brian Wolfman: Yes, I -- I --

Ketanji Brown Jackson: -- Kagan is making.

Brian Wolfman: -- I do take the point, and I think that is -- that is a possibility. But I'm -- I'm putting it in a different frame, which is that "terms, conditions, and privileges" is a limiting principle within the statute, and that may indeed tell you what -- what, in fact, is injurious in terms of 703(a)(1).

I'd agree --

Elena Kagan: But --

John G. Roberts, Jr.: This is very --

Elena Kagan: -- you don't --

John G. Roberts, Jr.: -- I -- and I'm sorry if I'm just repeating questions, but it's -- it's a very obviously significant thing and I found it extremely confusing looking at the briefs. You each say that the other concedes the point. (Laughter.)

John G. Roberts, Jr.: And I don't see that that can be -- be right.

I -- I mean, I don't know what the hypothetical would be. Let's say, you know, the -- the transfer is from an office, you know, on this hall to an office on the next hall that are identical, the responsibilities are identical, everything is the same.

You know, one is a different paint color.

Brian Wolfman: Right.

John G. Roberts, Jr.: And yet the person says, I'm transferring you from this office to that office because you're a woman.

Brian Wolfman: Right.

And --

John G. Roberts, Jr.: Is that actionable? There is no injury apart from, as you say, the fact of discrimination?

Brian Wolfman: You know, our position is, Your Honor, that that is injurious, and let -- let me explain why.

John G. Roberts, Jr.: When you say that is injurious --

Brian Wolfman: That -- that -- that case --

John G. Roberts, Jr.: -- do you -- I'm sorry.

Let -- let me -- does that mean there is a separate -- no separate requirement of injury or that everything I've said, there's -- nothing is different other than that the person is moved and -- and the -- the manager says it's because you're a woman. Everything else is the same. You say that there is injury there or that, I guess, you don't need injury?

Brian Wolfman: No, I -- I would say there is injury there because there's discrimination, but let -- let me explain why. I -- I believe, you know, this -- that the questions here are revolving around, I believe, whether there's some, you know, de minimus type exception to the position that we're taking.

And, you know, there are, of course, de minimis things that happen in the workplace, trivial things that happen in the workplace. So, if, you know, pink pens and blue pens are distributed to all the employees on a random basis, I think we can consider that trivial.

But, if they're distributed on the basis of race, immediately that becomes nontrivial. And I think most people understand that intuitively, that if those pens are distributed -- distributed on the basis of race, that could be stigmatizing.

In a sense -- I realize that pens are not public education, but in sense -- in a sense, that is Brown because Brown said, look, we're going to hold constant the question of any tangible harm.

Elena Kagan: Well, sure.

Amy Coney Barrett: Well, but unless you --

Elena Kagan: I mean, our discrimination law has recognized for many, many years that there are stigmatic injuries, right, where just the -- even if it's a very, very minor thing, you know, sending one set of people to one water fountain and another set of people to another water fountain is stigmatic injury. So -- so I accept that point. But are you saying that all discrimination is stigmatic injury? Like --

Brian Wolfman: No.

Elena Kagan: -- I mean, because you started with, you know, you know, making people worse.

I mean, there are differences and distinctions that people can make on the -- on the basis of protected characteristics that make people better off, right? I mean, if -- if I decide one day that, you know, every woman in my workplace should get a raise, I mean, that makes women better off.

Brian Wolfman: That is correct, and -- and -- and that -- if that is publicly known, that could be stigmatizing, in effect, both to the women and to the men.

And can I explain why? To -- to the women, it might be that if we're doing this solely on the basis of sex, the person might say to themself, well, I earned this, I earned this raise, and now it's being meted out on the basis of my sex or race or national origin. Now, of course, in your circumstance, the men might have a cause of action as well, but the point is is that's stigmatizing if it's done publicly.

If it's done privately, it's still denigrating and demeaning even if it is not stigmatizing.

And, you know, that's what this statute is -- is going at. Now what I do --

Amy Coney Barrett: But are you saying then, if the employer wants to increase diversity in the workplace and so promotes, say, some black employees and they get better jobs, then that's discrimination?

Brian Wolfman: That poses -- I want to answer that question, but I -- I also want to say that that is -- is not posed by this case.

Amy Coney Barrett: I understand that --

Brian Wolfman: Of course, I know you know -- I --

Amy Coney Barrett: -- but it seems to me the answer you just gave Justice Kagan would logically apply to that situation.

Brian Wolfman: Well, it -- it -- it's a difficult question because, if -- if a employer has an affirmative action plan, that calls up this Court's decision in Weber and Johnson, and it would have to be evaluated in terms of the -- the guidelines set out in Weber and Johnson. And so there's a separate category of analysis for, you know --

Amy Coney Barrett: Okay.

Well, let me take the example --

Brian Wolfman: -- this grievant and affirmative action.

Amy Coney Barrett: -- you just gave, then I'll put race to one side. The example you just gave, you said it would be actionable under Justice Kagan's hypothetical of all women promoted.

What if it's we want to have a, you know, face first, we want women out there, we want to promote women, we want to show that we are friendly to women, let's say it's a law firm and there's -- you know, the numbers of female partners are low and so they want to bring that up. That's actionable?

Brian Wolfman: I'm -- I'm not sure. This is -- is this some sort of requirement? I -- it's hard to answer.

Amy Coney Barrett: Well, I'm just asking you on Justice Kagan's hypothetical if the --

Brian Wolfman: Yes.

I think that it --

Amy Coney Barrett: -- employer agrees. And it sounds to me like you were saying that was actionable discrimination.

Brian Wolfman: -- if there is a privilege of employment that is meted out on the basis of sex, that is actionable.

And I think, you know, I can turn back to Justice Kagan's hypothetical and, again, if -- if women are being given raises just because they're women, then that is actionable and also, as I say, potentially stigmatizing to the women. And -- and if it's being given out not to the men simply on the basis of race, of course, they have a claim as well.

Samuel A. Alito, Jr.: I don't think the -- the problem that's presented by this case -- and it's a -- it's a difficult problem -- is whether there are forms of disparate treatment that are benign. I would say that all disparate treatment based on race, sex, et cetera, is wrong, but I think the insight, right -- right or wrong, of the courts that have imposed something like a significant disadvantage requirement is that although disparate treatment based on one of these characteristics is wrong, there should be some sort of threshold before it gets into court, and that's where the de minimis idea comes from. But you say there -- there shouldn't even be a de minimis exemption.

Brian Wolfman: Well, that is our position, but I want to take your question in a couple stages if I may. The first is a significant disadvantage rule and these -- the others that are similar, objective tangible harm, objective harm and so forth that you see in the circuits, have not been applied in anything like a de minimis way, and you see that in the -- in -- in, as we cited in our briefs, in the brief of the New York Legal Aid Society at pages 27 -- 24 to 27 of the LDF brief, this is --

Samuel A. Alito, Jr.: Well, I don't want to interrupt you, but, I mean, the issue is whether there should be some kind of threshold --

Brian Wolfman: Right.

Samuel A. Alito, Jr.: -- whether it's de minimis, whether it's significant disadvantage, whether it's -- whether some other terminology is appropriate, some sort of threshold that has to be cleared before the matter gets into court. I mean, the -- the employer says -- the employee says, on Monday morning, the -- my supervisor always asks my similarly situated coworker whether he or she had a good weekend, but the supervisor never says that to me. Is that actionable?

Brian Wolfman: That -- that may not be a term, condition, or privilege of employment if this is not a requirement of the job.

That -- that -- that may be separately, you know, analyzed under the hostile work environment type.

But I -- but I don't want to evade the -- the question. And so, again, if -- our position is that you don't have to get to the de minimis question because discrimination itself gets over the de -- de minimis hurdle, but I do want to go back to my first --

Brett M. Kavanaugh: Isn't your point that terms, conditions of employment could not cover certain things like what Justice Alito --

Brian Wolfman: The --

Brett M. Kavanaugh: -- just mentioned? It would still be, if you're treating someone differently on the basis of race, that's discrimination.

Then the separate question is, is it a term or condition of employment.

And some, you know, after-hours things or random things in the office that are more social than related to work are maybe --

Brian Wolfman: That is --

Brett M. Kavanaugh: -- not terms, conditions of employment.

That's the --

Brian Wolfman: That -- that is correct.

Brett M. Kavanaugh: -- analytical way to approach it.

Brian Wolfman: That is one way to go about it, Justice Kavanaugh, and that's why in my -- my first-line response to Justice Alito was that might not have been a requirement of the workplace.

But --

Samuel A. Alito, Jr.: Well, then what is a --

John G. Roberts, Jr.: I -- go ahead.

Samuel A. Alito, Jr.: Go ahead, Chief. What is a requirement of the workplace? What is the definition --

Brian Wolfman: It -- it is --

Samuel A. Alito, Jr.: -- of a condition of employment?

Brian Wolfman: Terms, conditions, and privileges of employment are any requirement or benefit imposed upon or withheld from or denied an employee.

That's what a term, condition, or privilege of employment is. So, if it's just a statement made in the workplace, I just don't think that is necessarily a term, condition, or privilege.

Samuel A. Alito, Jr.: All right.

They -- they gave me an office with a view of the alley instead of an office with a view of a park.

Brian Wolfman: Your -- Your Honor --

Samuel A. Alito, Jr.: Is that a condition of employment?

Brian Wolfman: -- it -- it is a condition of employment, and I -- I must say, if that is meted out on the basis of race, all the employees of one race get a -- a -- a -- a -- a view of the alleyway and another set of employees purely on the basis of race get a -- deliberately get a view of the city, a beautiful view of the city, that is discrimination under Title VII.

Samuel A. Alito, Jr.: Well, your --

John G. Roberts, Jr.: Thank you --

Samuel A. Alito, Jr.: I'm sorry.

John G. Roberts, Jr.: Yeah.

Thank you, counsel.

If this is your position, I don't understand the bulk of your brief.

The bulk of your brief talks about different, you know, locations, different facilities, she has to wear a uniform, different hours, no weekend, different access to, you know, superiors. Under your theory, all of that is completely irrelevant.

And as far as the terms and conditions of employment, that was not your argument in the brief.

The argument in your brief was there's no requirement.

And then you go on and list all these things that would count under normal circumstances, I would think, as adverse consequences.

Brian Wolfman: Your --

John G. Roberts, Jr.: So why is all that in your brief if your argument is we don't need to show any of that?

Brian Wolfman: Your Honor, the reason that is in our brief is we -- we were laying out the harm that these rules like significant disadvantage have done in the circuits, and this goes back to Justice Alito's question. Significant disadvantage, as this Court itself said in Groff, is nothing like de minimis.

John G. Roberts, Jr.: Well, but, just to be clear, if none of that was in your brief, your argument would be the same? No -- as far as we know, hours were the same.

She did not have to wear a uniform.

Access to superiors would be, you know, absolutely the same. Everything is the same except --

Brian Wolfman: That is correct, Your Honor.

John G. Roberts, Jr.: Okay.

Brian Wolfman: No.

But -- but I think this is --

John G. Roberts, Jr.: So I should have skipped those pages?

Brian Wolfman: No, I -- I don't think that is -- that is right.

What we were attempting to do in our brief was to discuss the very things that have been coming up, the de minimis exception, coming up in all the lower court cases, and with the expectation that we would be asked these questions. But if the Court -- the Court narrowed the question to transfers, and if the Court wishes to decide this case solely on the basis of transfers, my client is perfectly happy with that.

John G. Roberts, Jr.: So we limited the question to transfers, and you gave us arguments talking about terms and conditions and the various ways in which there was actual injury?

Brian Wolfman: That is correct.

John G. Roberts, Jr.: Okay. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: There -- there are a number of significant differences between the two positions here, no question about it, but just to -- to give you a hypothetical that's different but in -- is perhaps related. So suppose the only difference between the two positions is one's a desk job and one's a job on the street, okay? And a particular employee says, they transferred me from the desk job, which is safe and interesting to -- to me, that's what I'm interested in, to the street job, which is more dangerous and not interesting to me.

That would -- that would qualify, right?

Brian Wolfman: Absolutely.

Samuel A. Alito, Jr.: What if it was the opposite way around and the employee -- this particular employee said, I don't want to sit at a desk all day, I want to be out there where -- in the real world? That would be -- that would qualify --

Brian Wolfman: Absolutely.

Samuel A. Alito, Jr.: -- as well?

Brian Wolfman: With -- Justice Alito, absolutely.

That is -- that is the Teamsters case.

The Court says in Teamsters that some people might prefer the line driving position and some people might prefer the local position. And Title VII protects either of those choices against a determination by the employer of discriminatory intent.

Samuel A. Alito, Jr.: No, I --

Brian Wolfman: That is Teamsters.

Samuel A. Alito, Jr.: -- I mean, discrimination, I can't emphasize it too much, on any of these grounds is morally wrong.

The question is whether it's the stuff of the district court case. One more question.

Some of our Supreme Court police officers prefer to work the day shift and some prefer to work the night shift.

So, if someone is transferred from the night shift, which a lot of people wouldn't like, to the day shift, that may be viewed as an injury by that particular officer, right, and that would be enough?

Brian Wolfman: Absolutely actionable. That's what -- that -- that's the -- the -- the Threat decision in the Sixth Circuit.

That's the Hamilton decision in the Fifth Circuit.

Samuel A. Alito, Jr.: And what if it's the other --

Brian Wolfman: Shift changes --

Samuel A. Alito, Jr.: -- what if it's the other way around?

Brian Wolfman: -- shift changes on the basis of race or sex are unlawful.

Samuel A. Alito, Jr.: Okay.

Thank you.

John G. Roberts, Jr.: Justice Sotomayor? Justice Kagan?

Elena Kagan: I mean, just to make clear I understand what you're saying, you're saying that there is an injury requirement but that the fact of discrimination satisfies the injury requirement in all but the most extraordinary case?

Brian Wolfman: Well, yes, I mean, and the -- you know, I -- I don't want to put my toes in too deep, but this was what was reserved in Bostock and clearly does not have to be dealt with here, which is, you know, there -- there may be deep-seated understandings and -- that people never think of sex-segregated bathrooms as discrimination.

That's correct. What -- this goes back to the point I made earlier, Your Honor, which is that differential treatment is almost invariably worse treatment if it's done on a basis of a protected characteristic.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: There was some suggestion in some of the amici -- we have so many amici -- that employers might respond to a decision in -- in your client's favor by redefining the terms, conditions, and privileges of employment so that you may be reassigned here, there, or wherever. And I want your thoughts about that.

Brian Wolfman: And I'm not sure I understand the question, Your Honor --

Neil Gorsuch: So --

Brian Wolfman: -- with all respect.

Neil Gorsuch: No, no, fair enough. That's my fault.

So what if an employer says, your job isn't defined as sitting at a desk or walking the rounds around the building or whatever it may be or being on the beat, but it is defined as any of those things so that there is -- it isn't a term or condition of employment that you are a desk job or on the beat?

Brian Wolfman: And, you know, the -- if the terms and conditions and privileges of employment --

Neil Gorsuch: Can an employer define its way around the problem, I guess?

Brian Wolfman: I think the answer is no.

If that determination that you're suggesting was made in response to a charge or a suit or -- or --

Neil Gorsuch: No, it would be made ex ante.

So we hire all of our police officers and you can be subject to any of these things. That -- that -- that -- that is the suggestion of at least some of our --

Brian Wolfman: And --

Neil Gorsuch: -- amici.

Brian Wolfman: -- and that --

Neil Gorsuch: A decision in your favor.

Brian Wolfman: -- might be permissible, but I want to add two caveats.

Neil Gorsuch: Mm-hmm.

Brian Wolfman: First, if there was evidence that that itself was done out of discriminatory intent, that would be unlawful. Secondly, if any given change within that broader context, so six months later a change is made consistent with the literal terms of that but done with discriminatory intent, that would be actionable under Title VII.

That may be very difficult to prove, I understand, but that would still be actionable.

Neil Gorsuch: And then I want to give you a chance to just flesh out your position, which I understand has been subject to some questioning this morning, that -- that in adopting the Civil Rights Act of 1964, Congress sought to root out discrimination, root and branch, and that all of it is impermissible, presumptively injurious.

Brian Wolfman: That is our position, and if I could take you to the words of the statute as to why we know that's so.

The statute prohibits discriminatory hiring and discharging, and the purpose of "terms, conditions, and privileges" is to catch everything else between those two endpoints, and that's how we know that it's meant to eradicate discrimination in the workplace.

It doesn't do it perfectly, but that's the intent.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: The amicus brief of the District of Columbia, joined by I think eight states, supports you but says that it would be helpful if in -- if we were to rule for you that we repeat something the D.C. Circuit said in its en banc opinion in Chambers, "Not everything that happens at the workplace affects an employee's terms, conditions, or privileges of employment." Are you in agreement or at least tolerate a statement like that?

Brian Wolfman: I mean, I think that is true, that not everything that happens at the -- in the workplace alters one's terms, conditions, and privileges of employment.

I think that may be true of the hypo --

Brett M. Kavanaugh: And can a --

Brian Wolfman: -- one of the hypotheticals that Justice Alito posed.

Brett M. Kavanaugh: And on transfers, I think your point was in the brief at least that transfers are heartland terms, conditions, or privileges of employment --

Brian Wolfman: It's about the job itself, yes, Your Honor.

Brett M. Kavanaugh: -- and that we don't need to resolve kind of the outermost reaches of what "terms, conditions, or privileges of employment" would cover.

Is that correct as well?

Brian Wolfman: A -- a transfer decision, to either withhold a transfer or to give a transfer, is the functional equivalent of a hiring decision or a discharge decision.

It is in the heartland of "terms, conditions, and privileges."

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: So let's say that I think the phrase "discriminate against" carries with it, scoops in with it, some sort of injury, but I also think -- you know, the QP was restricted to transfers, but I also think that you can look at a transfer -- it must be looked at objectively, but yet, in the eyes -- because transfers can change depending on the eye of the beholder, right? You had some questions like that.

I prefer the day shift, you prefer the night shift. But it has to be understanding all the facts and circumstances of, say, the young mother who wants the day shift so that her hours align with her children's hours or school and, you know, the supervisor says, I don't really want to work with women and I'm on the day shift, so I'm putting you on the night shift. For her, understanding her facts and circumstances, an objective person in her situation would consider that injurious.

Brian Wolfman: I -- I agree with that, but I -- I do want to offer a -- a caveat to that, which is -- so I -- I certainly agree that a person in those circumstances is likely to view that as injurious. But you are suggesting that there would be some sort of test that sort of marries subjective and objective, sort of objective but looking at it from the circumstances of the particular individual, and that worries me for two reasons. First, the -- the -- the statute doesn't train on that.

The track -- the -- the statute only asks questions about the employer's conduct.

Amy Coney Barrett: Well, I -- I don't think it is -- let's see -- I'm sorry to interrupt you, but I don't think the premise of your response is quite capturing what I think. I don't see it as a blending of objective and subjective because we do that all the time like, say, in -- in torts.

It's the reasonable man.

I mean, so we're trying to avoid the eggshell Title VII plaintiff, right? We're saying a reasonable person in the circumstance of the plaintiff would experience this as an injury, and I don't think that's a subjective inquiry.

It's putting an objective inquiry but just familiar with the facts and circumstances.

Brian Wolfman: Okay.

I -- I -- I accept that, that it's objective under -- under your description of it, but I -- I think that is not what the words of the statute call for. The -- the statute asks three questions about the employer's conduct, is it a term or condition, is -- is it with respect to a protected characteristic, and did the employer act with discriminatory intent.

That's what the statute calls for. And my concern is also a practical one.

I started reciting the pages of our brief and the amicus briefs.

You see case after case after case under the so-called objective standards, the one that used to exist in the D.C. Circuit, the one that exists in the Eighth Circuit, where things, you know, wildly different than what anyone would view as de minimis are being thrown out of court. And I -- I'll -- I'll end with this, which is that the Fifth Circuit in its recent en banc decision, 14 members of the court said these doctrines are thwarting legitimate claims of workplace bias.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: So I guess I'm really confused and a little bit worried about your concession to Justice Kagan that there is some sort of injury requirement here.

I -- I look at the text of the statute, and it seems to be doing what you said at the end with respect to Justice Barrett, which is identifying when there are unlawful employment practices. So the statute begins, "It shall be an unlawful employment practice for an employer," and then we skip down, "to discriminate against any individual with respect to the terms and conditions," et cetera, "of its employment because of these protected characteristics." So, to the extent that we are identifying sort of what is morally reprehensible, what is unlawful, I suppose we're just saying when someone discriminates with respect to these terms and conditions. So then the question, I guess, is what does it mean to discriminate, and I don't know that that necessarily means that there has to be some sort of injury. As I look at Bostock, you know, we have a -- a definition in Bostock that "discriminate" means roughly the same as it meant in 1964, "to make a difference in treatment or favor of one as compared to others."

Brian Wolfman: Right.

Ketanji Brown Jackson: That doesn't necessarily mean injury. And I am thinking of a scenario in which a person is fired or not hired or transferred because of their race, and it's not injurious.

Let's say it's the best thing that ever happened to them because it was a terrible job, and they're fired and, you know, they go on to do great things in another area, and the defendant is going to say that, you weren't injured by my discriminatory firing. So I don't understand why injury is doing work in this analysis.

Brian Wolfman: Well, I -- I don't disagree with anything you said, and I -- if I made a concession, I certainly -- of the type you're suggesting, I didn't mean to do that. What I am saying is that if there's an injury requirement, and there is some injury requirement to get over Article III, the -- the injury is --

Ketanji Brown Jackson: That's a different thing, though.

But, to my --

Brian Wolfman: -- the discrimination itself.

Ketanji Brown Jackson: Right.

But I'm sorry.

Brian Wolfman: The injury is --

Ketanji Brown Jackson: Can we just --

Brian Wolfman: -- the discrimination itself.

Ketanji Brown Jackson: -- can we just clarify, because, to the extent you're talking about that injury, you're talking about standing injury, right?

Brian Wolfman: Well, I'm talking about discrimination being an injury unto itself in all but the most unusual cases.

That was my back-and-forth with Justice Kagan.

Ketanji Brown Jackson: But that's just when it happens.

I mean, Congress is just saying, if this -- if discrimination happens, we have an unlawful thing, and so then the question is what does it mean to discriminate.

I thought we said in Bostock to treat someone differently because of this characteristic. Whether or not the person can go on to establish or has to establish that they were actually injured by that, I'm worried, and I thought that's what the issue was in this case. Do we have a separate element that a person who has been treated differently on the basis of race or -- or sex or whatever has to also prove that that differential treatment injured them?

Brian Wolfman: Well, what -- what I would say is that they have to prove no injury other than the discrimination itself.

There's no heightened harm requirement.

Ketanji Brown Jackson: All right.

And let me just ask you one --

Brian Wolfman: There's no additional harm requirement.

Ketanji Brown Jackson: -- one last question about that.

To the extent that we're worried that people who have not suffered any actual concrete harm as a result of this discrimination are bringing these lawsuits, I'm wondering whether or not that's not taken care of in damages because, at the end of the day, you bring your lawsuit, and if you've been transferred to exactly the same position, you say that to a jury, and they say, fine, you might have been discriminated against, but your damages are zero because you haven't shown any harm for which you need to be compensated. Am I thinking about that correctly?

Brian Wolfman: That -- that is -- that is correct, and we make this point at -- at some length in our opening brief and we reiterate in our reply brief that the idea that, you know, frivolous claims or marginal claims are going to come through is very unlikely.

One -- one needs to have damages to have, you know, a sensibly viable case to bring in federal court. And one of the reasons that we and amici talk about the kinds of cases that are being brought in the federal courts and being thwarted is they're all in the heartland.

I mean, the transfers may be most in the heartland, but we see cases about denials of training on the basis of race.

Ketanji Brown Jackson: So, indeed, that is -- that is the work of the stuff that the Chief Justice is talking about in this case, right? You want to show that this person actually was harmed in the sense that she could bring a case and get damages from the jury because something, you know, happened to her, but it's not an element of making the claim, correct?

Brian Wolfman: Absolutely correct.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Ms. Brown.

Aimee W. Brown: Thank you, Mr. Chief Justice, and may it please the Court: Forcing an employee to transfer because she is a woman is discriminating against her with respect to the terms and conditions of employment under Title VII regardless of whether one position is significantly worse than the other. That's the plain meaning of the text, and it's consistent with this Court's longstanding precedents, which recognize that the statute strikes at the entire spectrum of disparate treatment in employment. The City fights against the clear text principally by claiming that the phrase "discriminate against" incorporates a significant disadvantage requirement.

But to "discriminate against" simply means drawing distinctions that injure protected individuals. And this Court has repeatedly recognized that being denied equal treatment because of a protected characteristic gives rise to an actionable harm.

That's all the statute requires. The City's contrary reading would permit employers to designate a predominantly Hispanic store, as in the Seventh Circuit's AutoZone decision, to give only men their shift preferences, to pay Black employees $1 less, or to relegate Muslim employees to the back of a store.

Those results are inconsistent with the statute Congress enacted.

The Court should reverse and instruct the lower courts to apply the text as written. I welcome the Court's questions.

Clarence Thomas: Can you have discrimination that is perceived by someone who is, say, you say that this is law enforcement and we need in this particular precinct more black or Hispanic officers, and so you are moved or transferred because of race?

Aimee W. Brown: So there is a -- I -- I think that that is a discrimination claim and that would be actionable, and -- and that would qualify.

There is a bona fide occupational qualification exception --

Clarence Thomas: So doesn't --

Aimee W. Brown: -- which does not apply to race.

Clarence Thomas: But won't that run headlong into the focus on diversifying the workforce in certain situations?

Aimee W. Brown: So we think that there is adequate room within the bounds of Title VII to create opportunities for diversity and to ensure that diverse -- that -- that there is a diverse workforce through recruiting, through mentorship, through programs that -- that --

Clarence Thomas: No, I'm talking solely about transfers now, that you need more black police officers in certain neighborhoods, say, in St. Louis in -- and in the Sarah -- or, I'm sorry, the Page, West Page, or Cook area.

Aimee W. Brown: So, no, I don't think that you can make a transfer on the basis of race, and I think that's the clear text of the statute, and that's -- that's what it requires. Congress has this bona fide occupational qualification standard if there is a business necessity, but Congress expressly did not include race in that context.

So Congress made the judgment that there is no situation in which it's -- it's permitted or there is a business necessity or -- or Congress thinks that that could be justified within the context of race.

Clarence Thomas: So simply making the selection or the transfer based on race or sex in and of itself becomes actionable?

Aimee W. Brown: That is our position.

Clarence Thomas: Nothing more?

Aimee W. Brown: Yes, that's our position. We do think that when a transfer -- when an employment decision is made on the basis of a protected characteristic, that is the denial of equal treatment, and that's a harm that this Court has recognized in many cases, including Heckler versus Mathews, as my -- as my friend said.

You know, Allen versus Wright makes the same point.

There are other cases as well, but that we think is the only harm that the statute addresses.

Sonia Sotomayor: Can we go --

John G. Roberts, Jr.: Counsel, is there -- is there anything that Mr. Wolfman said with which you disagree?

Aimee W. Brown: So I think that he -- in a colloquy with Justice Gorsuch, he was talking about whether someone could change the definition of the conditions of employment or the -- of the -- what -- the way the work or your -- your job was defined.

I think our position is that any kind of job assignment will necessarily qualify as a term, condition, or privilege of employment.

It doesn't have to be set out in the way that the job description is written. And so I think that -- that -- that we think that, you know, those -- it doesn't matter if the job assignment description is -- is altered because of discriminatory reasons.

What matters is whether this particular person was assigned new responsibilities based on a discriminatory basis.

Sonia Sotomayor: Can you see any transfer that wouldn't qualify as discriminatory, assuming that it was based -- the Chief posited one where you're going to be moved from one end to -- to the other end of the floor, let's say.

I find it hard to posit that the only difference would be the color of the wall, but it could be, as the other -- as your colleague said, because one has a nice window and the other one doesn't, and I may think of that as de minimis.

Aimee W. Brown: Sure.

Sonia Sotomayor: All right? And some others might.

So can you think of how we approach those situations? The situations that intuit -- not the significant disadvantage one because I -- I have a very hard time understanding how courts are thinking that switching somebody from a day to a night job or a Monday-through-Friday job to a rotating week-long job where you're not getting any weekends off anymore is not a significant disadvantage, but we'll put aside the facts of this case.

Aimee W. Brown: Sure.

Sonia Sotomayor: How do we look at those sorts of things?

Aimee W. Brown: So I think that, by definition, if you are transferring somebody, if you're changing their office location, if you are, you know, altering their shift or -- or anything like that on the basis of a protected characteristic, that is inherently harmful. That is -- that is discrimination against them in the terms, conditions, and privileges of employment, and I think that that is actionable. I understand that there might be cases where the specific employment action itself seems minor.

I think that those cases are perhaps a lot less likely to be brought, in part because of the -- the damages concerns that Justice Jackson was -- was pointing to. I think also in those cases, it's going to be harder for -- as an evidentiary matter often for the employee to put forth sufficient evidence to show that there is a plausible inference that -- that the office assignment was made based on a protected characteristic, and so that is going to help, you know, get rid of a lot of these -- these kinds of claims on that basis as well. But what we think the inquiry should be focused on and what the statute certainly focuses the inquiry on is whether there is intentional discrimination, not on whether the particular employment action, so long as it fits within terms, conditions, and privileges, is of a sufficient degree to be actionable.

Brett M. Kavanaugh: But some things --

Elena Kagan: So just to --

Brett M. Kavanaugh: Go ahead.

Elena Kagan: I mean, just to clarify your position just so I understand it, even in your opening, you did use words like "injury" or "harm" or "worse off," I'm not exactly sure which ones you used, but those sorts of words, and we've used those sorts of words in several -- many of our opinions, but what you're saying is that those words do not have sort of any independent consequence, that once you can show the discrimination, you've shown the injury, you've shown the harm, you've shown the being worse off, that there's no extra thing.

Is that -- am I reading you right?

Aimee W. Brown: Yes, again, in -- in almost every situation.

Of course, we do recognize that there are some kind of distinctions that don't give rise -- that are generally viewed as innocuous, and so I would set those aside.

But, in the mine run case, when you are treating somebody differently based on a protected characteristic, that is the injury.

Elena Kagan: And what are you setting aside?

Aimee W. Brown: Bathrooms, there are some kinds of dress codes that, you know, are generally viewed as equal, but they recognize that men and women wear different clothes, things like that.

Samuel A. Alito, Jr.: What is your definition of a transfer?

Aimee W. Brown: So we don't have a definition of a transfer.

The Court, you know, reformulated the -- the question presented to -- to focus specifically on transfers.

Nothing in our position changes based on how you view a transfer.

I think, you know, most courts or -- the kinds of transfers that -- that are generally addressed are, you know, a change in location, in responsibilities, in supervisors, things like that.

Samuel A. Alito, Jr.: You want us to hold that it's always sufficient if it is alleged that there was a transfer on the basis of a prohibited characteristic, but you -- you don't want to tell us what a transfer is?

Aimee W. Brown: Again, I think that was a term that was introduced by the Court.

It's not a statutory term.

But I think you could say, when there are -- and the D.C. Circuit doesn't --

Samuel A. Alito, Jr.: I'm sorry to interrupt.

How can we decide the case on that basis? Maybe it was unwise for the Court to phrase the question that way, but the -- the question is whether all transfers qualify.

So don't you have to provide a definition of a transfer?

Aimee W. Brown: So I would say that it is something like what I was suggesting.

It's where the -- the employee's responsibilities, job location, or supervisor have changed.

I don't think it needs to be all three. So, for example, there's the Seventh Circuit's decision in -- in AutoZone, where an employee was transferred from one store to another on the basis of race.

The allegation there was that the employer wanted to maintain a predominantly Hispanic store, and so they moved an employee over to another store to maintain that. The Seventh Circuit there held that that was insufficient under either Section 703(a)(2) or (a)(1).

We think that's incorrect. We think that kind of a transfer would certainly qualify.

John G. Roberts, Jr.: So now -- so you're saying a transfer is covered because there will always be changes in conditions or terms.

Well, then a transfer itself is not enough.

You have to look at the conditions and terms.

If it is from one place to another, it's a transfer, and if everything's the same, then, under your position, it wouldn't be covered, because you look at -- there must be new conditions, there must be terms.

And, certainly, if there -- there are changes in conditions and terms, and that's -- many were documented or at least at the summary judgment stage in the Petitioner's brief.

And that's a familiar inquiry and easy. But if you're -- you're saying that -- well, if you're saying that there always has to be a change in conditions and terms, that's one thing.

Saying it doesn't matter whether there is or is not so long as there's discrimination, it seems to me that's something different.

Aimee W. Brown: So there certainly does have to be a change in terms and conditions of employment.

We think that anytime there's a transfer, there will necessarily be a change in terms and conditions of employment because I take a transfer to mean at least a change in location, and -- and we think the location is a part of your attendant -- the attendant circumstances that surround your employment. That's a part of your -- your working conditions. The Court has recognized in, you know, Meritor and Oncale and -- and Harris that working conditions are a part of what -- of what is encompassed within terms and conditions of employment.

So I -- I think that, by necessity, a transfer is going to fall into -- into those categories.

John G. Roberts, Jr.: Okay.

Thank you, counsel. Justice Thomas? Justice Alito?

Samuel A. Alito, Jr.: Do you think it's helpful to say, "Not everything that happens in the workplace falls within Title VII"?

Aimee W. Brown: Yes, I think that would be helpful, and it would be appropriate.

I agree with what the District of Columbia's brief said, that that phrasing has helped the -- the lower courts, the district courts, there have sufficient leeway to continue to dismiss claims that are not actionable, that maintains the kind of, you know --

Samuel A. Alito, Jr.: Okay.

So then --

Aimee W. Brown: -- personal facts.

Samuel A. Alito, Jr.: -- what things that happen in the workplace don't qualify?

Aimee W. Brown: So I think that that phrasing refers to things like informal workplace interactions, isolated incidents.

The Court in, you know, Harris, Oncale, Meritor has referred to things like offensive and distasteful jokes even if they are kind of, you know, sex discriminatory or racist in some ways, single, you know, one-off interactions like that, for example.

Samuel A. Alito, Jr.: Well, you talk about one-offs in your -- in a footnote in your brief, but, when you -- when you talk about harassment, are you trying to -- you don't want us to import that statement here -- I mean that standard here.

It has to be severe and pervasive?

Aimee W. Brown: No.

No, that's not what we're suggesting.

In the footnote in our brief, we suggested that -- or we -- we were explaining that I think one-off incidents in those cases, they're -- it's less likely that those are going to -- enough to be actionable -- being actionable, even if it is a one-off situation that affects your terms and conditions of employment, simply because, in those instances, it's going to be harder as an evidentiary matter to put forth sufficient evidence to show that there was intentional discrimination.

Samuel A. Alito, Jr.: Well, what if the supervisor is always nasty to me because of my sex? Always.

Does that qualify?

Aimee W. Brown: That I think would be analyzed under the hostile work environment cases, and it would depend on whether the -- the nasty treatment was severe and pervasive.

Samuel A. Alito, Jr.: Well, why does that have to be severe and pervasive, but there's no threshold requirement for any other form of workplace discrimination?

Aimee W. Brown: So the Court has explained that in the hostile work environment context, the question is whether there is a constructive alteration of the terms and conditions of employment, and so the -- the question is essentially whether the employer has effectively required you to submit to that harassing treatment as part of the working environment that you're in. And I think, you know, a background kind of lurking factor in those cases is also whether the conduct that you're speaking about there is attributable to the employer as an employer, and, you know, the employer is not always going to be responsible for everything that the -- the supervisor says.

Samuel A. Alito, Jr.: Okay.

One last question. Suppose you're talking to a district court judge and the district court judge says, look, every year I'm getting 500 new civil cases, and you're telling me that I cannot dismiss for failure to state a claim a case that alleges only really trivial disparate treatment. And you say, well, don't worry about that because, after discovery, you may be able -- I may be able to grant summary judgment or, after trial, the -- the damages aren't being -- aren't going to be significant. And, really, that's not an answer to my problem.

It's really helpful to me and consistent with what I think belongs in federal court, not what's moral and immoral but what belongs in federal court, to be able to dismiss these trivial cases at the outset as soon as I see the complaint. What do you say to that judge?

Aimee W. Brown: So, even after Chambers in the D.C. Circuit, there have been cases that have been able to be dismissed on a motion to dismiss when there are conclusory allegations, when the facts pled still do not give rise to an inference of discrimination.

You know, you still do have to plead something that's going to help give rise to that inference of discrimination, whether that's a comparator in a -- in a similarly situated position or whether that's other conduct that suggests that these minor employment incidents are attributable to discrimination. And so there are -- there are cases, we've cited some in our brief, I think the District of Columbia in its amicus brief cites additional cases from the district where those cases have been able to be dismissed.

And, of course, discovery can be limited, motions for summary judgment are often granted. And I would also say that even in the transfer context now, when the courts have -- have required this kind of significant disadvantage requirement, you're always getting through or almost always getting through to summary judgment because courts have recognized that -- that at least in some instances, the change in position is significant -- is sufficient, and so courts are -- are addressing those then too.

John G. Roberts, Jr.: Justice Sotomayor? Justice Kagan? Justice Gorsuch?

Neil Gorsuch: Ms. Brown, you -- in some of your discussions, a -- a lot of what you said tracks what the D.C. Circuit said in Chambers, and I just wonder, is there anything in that opinion with which you disagree?

Aimee W. Brown: No, I don't think that there is.

I mean, I think they -- they set aside the question of whether there's a de minimis exception.

Of course, we think that the Court could -- could do the same here.

Any transfer is necessarily going to be, we think, more than a de minimis injury. In our view, we think that there probably is no real de minimis exception here because of the significance of the -- the injury based on a protected characteristic, that that discrimination in and of itself it seems hard to characterize as trifling or insignificant or hardly worthy of notice. But -- but we think that, you know, the opinion by Judge Tatel and -- and Judge Ginsburg was a very good opinion and we -- we do agree with it.

Neil Gorsuch: That's what I thought the answer would be. (Laughter.)

Neil Gorsuch: In -- in your colloquy with Justice Kagan, you briefly mentioned bathrooms and uniforms and suggested they might be okay, and I'm wondering how under your theory of the case.

Aimee W. Brown: So I -- I think that there is this kind of narrow set of circumstances that I just referred to where there -- distinctions based on sex have kind of always been treated as innocuous, and I think those circumstances raise their own kind of special set of issues and there are cases that might arise within that context where you question whether the specific, you know, set of bathrooms or the grooming standards fall within that innocuous kind of characteristic and --

Neil Gorsuch: Innocuous by -- innocuous, do you mean non-injurious?

Aimee W. Brown: Yes, exactly.

Neil Gorsuch: So you think there is an injury requirement here?

Aimee W. Brown: Yes.

It's the injury that is inherent in unequal treatment in most circumstances.

In almost any circumstance, when you're talking about protected characteristics, I think that there are some differences with sex and that this Court has recognized those.

Other courts have recognized those.

The Court hasn't really fully fleshed out I think, like, the theory behind that.

If I had to guess, I think it would be --

Neil Gorsuch: I'm not asking you to guess, but I am --

Aimee W. Brown: Okay.

I won't guess. (Laughter.)

Neil Gorsuch: -- but I am asking for your help, so keep going.

Aimee W. Brown: My sense is that -- that the intuition behind the distinctions in those cases is that in the mine run case, a gender-specific bathroom or a uniform is not going to give rise to the kinds of stigmatic or dignitary harms that we usually associate with unequal treatment on the basis of sex. I think that there are obviously distinctions or -- or there are cases when that won't be the case.

If the bathrooms are actually unequal, if the dress and grooming standards, you know, trade on sex stereotypes or are themselves, you know, more -- more difficult to comply with for one sex than the other, then I think that you would be maybe outside of that kind of innocuous area.

Neil Gorsuch: You at least think that there are some circumstances in which those distinctions are permissible under Title VII?

Aimee W. Brown: Yes, we do.

Neil Gorsuch: Okay.

Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: On bathrooms, dress codes, and grooming standards, though, you couldn't have, of course, different standards based on race.

Aimee W. Brown: Of course not.

And I think that kind of suggests that the question there is not -- or the issue there is not whether bathrooms or dress and grooming standards are conditions of employment and it's not whether distinctions with bathrooms and dress and grooming standards are too immaterial to be significant.

It's just pulling out that we do think that sex is sometimes different.

Brett M. Kavanaugh: And then a couple times -- this is a little bit of a side point -- but you said severe and pervasive when talking about harassment.

My understanding, and this matters, and some cases have been on, it's severe or pervasive.

Aimee W. Brown: That is correct.

I apologize if I -- if I misstated that.

Brett M. Kavanaugh: And then, third, at summary judgment, a lot of these cases are resolved in my experience.

Is that your understanding as well?

Aimee W. Brown: Yeah, that's consistent with what I've seen, and looking through the cases that were decided in the D.C. Circuit after Chambers, the majority of the cases where summary judgment was at issue, the -- the -- the employer prevailed in those cases even then, and that's based on whether there's sufficient evidence of -- of intentional discrimination at that point.

Brett M. Kavanaugh: And this is Justice Alito's question, but I -- I think it's always been pretty hard to dismiss a case on 12(b)(6).

Aimee W. Brown: Yes, I think that's correct.

You don't have to plead the prima facie case, as this Court has held.

And so there are -- there are instances in which you can get -- where you can get dismissed on 12(b)(6) if you -- if -- if the -- the facts there just aren't -- aren't there, but in the mine run of cases, I think you are getting to summary judgment even now.

Brett M. Kavanaugh: Thank you.

Aimee W. Brown: Mm-hmm.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: I just want to be sure that I understand the government's position here. So the word "discriminate" can have no negative connotation.

Like I might have a discriminating palate, right?

Aimee W. Brown: Mm-hmm.

Amy Coney Barrett: But, because Title VII has the word "against" in it, discriminate against, it does carry some sort of injury, but the government's position -- and maybe this is why bathrooms and grooming standards for men and women are different -- the government's position is not that there is no injury but simply that mere discrimination is the injury, and with race, that basically exists all the time, but with sex, it does not always exist because not every distinction between men and women is injurious.

Aimee W. Brown: That's correct, yes.

Amy Coney Barrett: Okay.

Thank you.

Aimee W. Brown: Mm-hmm.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: So just going back to Justice Alito's questions about trivial disparate treatment, I guess I didn't see those in the QP, and maybe I'm not looking at it correctly. I thought we had isolated the transfer determination in order to avoid having to say anything about whether or not there would be an injury requirement in a whole host of other situations, to include the trivial or, you know, allegedly trivial scenario. Am -- am I -- am I looking -- so I thought our opinion could say whatever injury requirement might exist with respect to certain kinds of other kinds of employment determinations, we took this case to focus on transfers, and with respect to transfers, we hold, and I guess you would have us hold, that it's enough under the statute that a person is transferred because of these protected characteristics. They do not have to separately prove that that transfer, because of the protected characteristics, injured them or significantly injured them or whatever the -- the --- the court of appeals held here about the degree of injury.

Aimee W. Brown: That's correct.

And -- and we have a -- you know, a footnote in our brief there as well that kind of sets aside these cases and says, you know, the -- the Respondent here, the City here, has brought up a host of hypotheticals.

And, of course, the Court has narrowed the question presented and doesn't need to address any of those. I took some of Justice Alito's questions to be about whether a transfer could in some situations seem relatively minor if it -- if you think that a transfer would incorporate, you know, a move from one office to another.

Ketanji Brown Jackson: All right.

So let's take -- Justice Sotomayor had that scenario as well.

Aimee W. Brown: Mm-hmm.

Ketanji Brown Jackson: Let's take that. You have the office, and one is red and one is blue.

They're otherwise identical.

And the person, the boss, says, I think women should be in red offices.

So, I'm sorry, I know you picked the blue office in the -- as we went through, but I'm requiring that you sit in the red office because you're a woman. Is it the government's position that the woman would have to, in that scenario, not only prove that she was selected for this treatment because she was a woman but also that working in a red office significantly injured her?

Aimee W. Brown: No.

Our position is that the discrimination based on a protected characteristic is sufficient to show the harm that's required under the statute.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Mr. Loeb.

Robert M. Loeb: Thank you, Mr. Chief Justice, and may it please the Court: The language used in the statute doesn't say "discriminate between" or "discriminate with respect to." It says "discriminate against," and that language, as used in Title VII, requires not just differential treatment but a difference that injure the employee, specifically significant material objective harm. And reading Section 703(a)(1) to require harm is nothing new.

For example, more than 25 years ago in Oncale, this Court held that a plaintiff needs to show both that they were subject to disadvantageous conditions, there harassing conditions, and that those adverse conditions were imposed based on a protected status.

And this Court went on to say the severity and the negative impact of the conditions must be looked at through an objective lens, not based on personal sensitivities, not based on personal preferences. That approach is fully consistent with that of the Eighth Circuit here and consistent with the approach adopted by pretty much all the circuits for the last at least 25 years. And reading "discriminate against" as requiring material objective harm is fully consistent with how this Court read that very same language in Section 704(a) in Burlington Northern as that Court looked to 7 -- 703(a)(1) precedent and the language of 703(a)(1). Moreover, reading "discriminate against" as requiring significant material harm is a piece with the specific examples provided in the statute.

Congress gave the initial examples of refusal to hire, firing an employee. Those are quintessential acts that are harmful to the plaintiff. A contextual principle that is embraced by this Court for a long time is that the Congress does not legislate as to trifles. So it's no surprise that this Court has consistently read Title VII not to speak to minor slights or personal preferences of the employee or job actions with no significant harm.

As Justice Scalia emphasized in Oncale and as this Court reiterated in Burlington Northern, Title VII is not a civility code. Here, the Eighth Circuit properly held that the personal preferences for one assignment over another within the St. Louis police force, without more, cannot support the harm requirement of Title VII, and this Court should affirm that judgment. I welcome your questions.

Clarence Thomas: You say there -- there must be harm because of the addition of the preposition "against," "discriminate against." But how do we quantify that harm? And if you are correct or if you think it has to be a material harm, is there any difference between that and de minimis harm? Or is it one side of the same -- different sides of the same coin?

Robert M. Loeb: Yeah, the other side argues that it's unclear what the standard means.

It makes arguments that it's not administrable. But the courts of appeals have been applying that standard for at least 30 years and have said that material harm means that there's something that is harming you as far as in the workforce.

Your responsibilities, your chances for advancement.

You know, it can be your hours of work.

It can be a significant different -- different functions of the job.

It's not a high bar, but there needs to be something more than mere personal preferences and -- and subjective sensitivities of the particular employee. So it's a material objective harm. It's through the lens of an objective employee, not the frailties of a particular sensitive employee.

Ketanji Brown Jackson: Can I ask you --

John G. Roberts, Jr.: Why doesn't the -- down a hall, offices on both sides, the employer says, I want the women on the -- the east offices, I want the men on the -- the west. Everything else is identical. Why -- why isn't that a sufficient harm in the same way any type of segregation on the basis of race or gender is itself harmful? You're not really sure what the consequences will be in terms of perception or -- or anything else, but it seems to be a certain violation of the statute.

Robert M. Loeb: Yeah, I think, once you add into your hypothetical the overt discrimination, then you get into a hypothetical like Justice Kagan's water fountain example where by a protected status you're going to allow one group and -- and not another.

And it could be an office. And then you would look at it as Judge Katsas said in the -- in his dissent in the Chambers case.

You'd look through the lens of the, you know, harassment, hostile workforce cases as to whether that statement by the employee that women -- you know, saying that they use -- need to use one bathroom or the other, that doesn't create stigma.

But saying I want all women to be over here and I want all men over there in certain circumstances can be stigmatizing.

For example, one of the hypotheticals, I'm going to give one protected status group just views of the alley and I'm going to give others not views of the alley.

John G. Roberts, Jr.: Right.

Now you're having the same difficulty the other way as we had or at least I had before.

I'm just asking about no discernible harm.

And your answer is, well, there's a view of the alley, there's a view of this.

Robert M. Loeb: No.

John G. Roberts, Jr.: I mean --

Robert M. Loeb: Let me --

John G. Roberts, Jr.: -- am I going to have the same problem with you, only from a different perspective? (Laughter.)

Robert M. Loeb: No, no, let me --

John G. Roberts, Jr.: Because, I mean, you seem to be answering questions in which there's no harm apart from discrimination by saying, oh, there is harm. Now, if the harm is the discrimination itself, that's one thing.

Do you think that situation could arise?

Robert M. Loeb: No, that -- that -- their argument conflates the intent and the harm requirement.

You don't just satisfy the requirement by saying: But I think it was done to me because of my protected status. What I'm suggesting is there are some cases where what the employee is -- saying something overtly, as -- as -- as Justice Thomas said last -- last term, that if you have a -- a stigmatizing segregation in the workforce, it's inherently going to be injurious. So it's the stigma in certain circumstances which are based on the statements being made by the -- the employer --

Brett M. Kavanaugh: Well, what if it's not --

John G. Roberts, Jr.: Okay.

No --

Brett M. Kavanaugh: -- what if it's not overt, though? So it's proved that that's what's happened, but it was never said.

So the discrimination, after you go through discovery, is proved.

This is what has happened.

The women have to work in one place, the men in another.

Or the black employees are assigned to different offices.

It's never said, though, so you can't just funnel it into harassment.

Robert M. Loeb: I -- I -- I --

Brett M. Kavanaugh: Under your theory, that's fine.

Robert M. Loeb: Under our theory, it is the statement being made by the employer which is stigmatizing.

Brett M. Kavanaugh: It --

Robert M. Loeb: You're saying that I think it's based on my --

Brett M. Kavanaugh: Exactly, but if you have a policy, just never stated, of I'm assigning the black employees to work outside in the heat, as one of the cases you were --

Robert M. Loeb: Right.

Brett M. Kavanaugh: Yeah?

Robert M. Loeb: We think --

Brett M. Kavanaugh: But it's never said.

So you can't just funnel it into harassment.

Robert M. Loeb: Well --

Brett M. Kavanaugh: You would be, like, that's fine, that's good to go.

Robert M. Loeb: First of all, we -- in that Fifth Circuit case, in that example, that would be certainly a -- a -- a -- a disadvantageous term or condition of employment.

So that's -- we don't have any -- any disagreement with -- with -- with that.

But --

Brett M. Kavanaugh: Well, that's why I think it's not a sufficient answer to just say harassment will cover this --

Robert M. Loeb: Well --

Brett M. Kavanaugh: -- because it won't cover it in the cases where it's not a stated policy, but it is nonetheless a --

Robert M. Loeb: So Congress --

Brett M. Kavanaugh: -- policy.

Robert M. Loeb: -- Congress addressed that kind of categorical -- I'm going to categorize one protected group, they get to do certain things.

Another protected group doesn't get to do certain things.

Under (a)(2) of the statute, which talks about classification, which talks about categories, it talks about jobs, opportunities.

I don't think (a) -- (a)(1) should be broken open and the harm requirement completely wiped out.

Ketanji Brown Jackson: But wait.

Amy Coney Barrett: Okay.

But --

Ketanji Brown Jackson: Isn't (a)(1) about the intentional discrimination? I mean, I thought the difference between (a)(1) and (a)(2) is (a)(2) is about the effect and (a)(1) is about the intent of the employer to make this classification, which is why I'm resisting your suggestion that there is any harm requirement, as opposed to suggesting there is and perhaps it is being automatically satisfied.

I am reject -- sort of resisting that (a)(1) is asking anybody about whether or not the discrimination in this situation is causing someone's harm. So can you -- can you do my hypothetical about women in red offices and men in blue offices? The offices are otherwise identical, but we have a policy, whether orally stated or written or whatever, that women are in red offices.

So, if there was a woman who said, you know, I, for whatever reason -- well, that's the policy, women in red, men in blue, all right? Are you saying that in order to bring an actionable discrimination claim, a woman would have to say, I'm harmed by having worked in a -- a -- a -- a red office, and then it would have to be sort of material and objective and all of the other things that you bring into your harm standard?

Robert M. Loeb: I -- I would agree with that, that we'd say that they're not harmed unless they could show that the -- the -- the statement, the policy is stigmatizing them, saying that --

Ketanji Brown Jackson: No, no, I understand.

I'm just -- that assumes there's a harm requirement.

You're -- you're sort of speaking to how you would go about establishing the harm requirement, and I'm trying to determine whether there is such a thing. So you're saying, in a situation like the one I posited, if -- that -- that there is another element that the person has to show, and they have to show not just my boss said you're a woman, you're in the red office, no matter what, that's not enough, I would have to somehow marshal evidence that I'm being harmed by being put in the red office because of my gender. Is that what you're saying?

Robert M. Loeb: I -- I -- that's correct, and I think that's actually fairly consistent with the position being taken by the other side here.

That's how they get around the bathroom cases.

They say, well, yeah, that's a distinction.

You're not -- you're not being allowed in that bathroom, but you're allowed in that bathroom.

But that doesn't --

Elena Kagan: Well, Mr. Loeb, I think that that's not quite fair.

I mean, the -- the bathroom/grooming cases which first apply only in the cases of gender, but they're a really kind of discrete category. And the position that this side of the podium is taking is both simple and easy to understand in terms of Title VII's language, which is just to say that if there is discrimination, that counts as a harm.

The discrimination is the harm save for these very few exceptional cases. Now what you are saying is, no, there has to be an additional showing of harm.

We recognize you say that harm doesn't really have to be material because you're including stigmatic harm in that. So now a court is going to have to, like, wander around going, well, how big is this harm and is it really stigmatizing or is it only a little bit stigmatizing.

And that sounds both like something that you don't want any court to do and also something that the statute does not suggest.

Robert M. Loeb: Well, it's the kind of analysis which is done all the time regarding conditions cases under (a)(1).

The harassment cases are conditions cases, and the courts say not all conditions, even if based on a protected status, based on gender or race, even if it's based on that, the harassment is coming from --

Sonia Sotomayor: But harassment is different and it's different because there hasn't been a direct -- an actual change in terms, privileges, or conditions.

You're doing the same job.

You have the same supervisor. You have the same hours.

You have the same everything. What we have said is, however, that constructively -- and that's how you have to figure this out -- there is a change because you're being subjected to something that might force you out of the workplace. Now that's a very different situation from -- from one where there's an actual change in terms and conditions.

Robert M. Loeb: I -- I -- I -- we disagree with that, Your Honor.

I think if you read --

Sonia Sotomayor: I know you want us to -- to disagree with it, but I don't see how you can get past the difference.

Robert M. Loeb: Well, let me -- let me -- let me walk you through the -- our -- our reading of Oncale, which is, I think, clearly the correct one.

So, if you -- this is Justice Scalia's unanimous opinion 25 years ago under 703 elements.

In responding to the argument that the Court's approach was too broad, too liberal, at page 80, Justice Scalia holds that the challenged conduct must be because of a protected status. But then he goes on to say and separately hold that not all conditions imposed by a protected status will qualify, and he says that's because of Title VII's text referring to "discriminate against." He says that text indicates that the statute only covers disadvantageous terms and conditions. So not all harassment that affects your conditions of employment and even minor harassment, you know, affects your conditions of employment.

It needs to be disadvantageous. And, of course, then the Court went on to reaffirm the objective standard. They argue there is no harm requirement, and subjective preferences, subjective sensitivities all will support an action, and that's not only contrary to Oncale, it's -- it's directly contrary to how this Court read the very same language of "discriminate against" in Burlington Northern, examining the Section 703 precedent and saying you need material objective harm.

The same language and the same statute by the -- passed by the same Congress needs to be read the same way.

Brett M. Kavanaugh: Do you --

Amy Coney Barrett: Counsel --

Brett M. Kavanaugh: -- do you agree --

Samuel A. Alito, Jr.: Suppose there are two women associates in a law firm, and one says, the -- the partner to whom I'm assigned is always nasty to me, invariably nasty to me all the time, never friendly, always critical, making my life miserable by being nasty to me. And the other one says that they assigned me to an office with a view where I don't get the afternoon sun, and they assigned a similarly situated man to an office where they get the -- which -- is there a reason to treat those two women differently?

Robert M. Loeb: I -- I -- I don't think so. Those kind of minor slights and grievances are what this Court in Burlington Northern warned, that if you open the door to those kind of lawsuits and had no meaningful threshold, the federal courts would become the super-personnel department not just for all private employers but for state governments and for local governments.

Samuel A. Alito, Jr.: Well, I don't know that the woman who -- who says that the boss is invariably nasty is -- is alleging something trivial, but what I'm asking about is the suggestion that any transfer from one office to another qualifies, but if it has to do with unpleasantness in the workplace, then anything goes.

Robert M. Loeb: I mean, there are cases about transfer from one side of the -- of the office to the other, and the courts of appeals have all held and the district courts have held that that is not a material objective harm. You know, if you gloss on some sort of express statement, I'm doing this because of race, I'm doing this because of protected status, then you can start looking at it under a stigmatic approach of injury, but you don't want to micromanage every personnel action. The -- the scary thing about their position is and the SG's position -- I want to be very clear -- is that everything that happens in the workplace, every assignment, every -- pens, giving out pens to employees are going to trigger lawsuits based not just on --

Amy Coney Barrett: Well, let me focus you on the facts of this case and not the pens or the red office and the blue office, and I want you to put aside any quibbles that you have with the other side about the facts and, you know -- and the summary judgment record. This is different than the red office to the blue office, okay? So she was transferred, and let's imagine here that you have evidence that her supervisor said because he did replace her with a man, I just don't really like working with women, I want to work with a man, so I'm going to transfer you to this different district. And an objectively reasonable person in her circumstances, even though the job title and the -- the money and all that didn't change, would view that as less interesting, the job responsibilities change, she lost access -- putting aside the facts about, you know, the -- the access to the unmarked car and the uniform changes and the FBI task force, putting all that aside, it was -- an objectively reasonable person would find that less desirable in -- in her position because of the conditions of the employment.

But you say not actionable.

Robert M. Loeb: No, Your Honor.

So let me just talk -- there are two sort of parts to that.

One is these change in the conditions about the car, about the hours, and all those things, which the district court --

Amy Coney Barrett: I -- I want you --

Robert M. Loeb: I -- I know.

Amy Coney Barrett: -- to put that aside.

Robert M. Loeb: But, if -- if she had --

Amy Coney Barrett: Just go with my hypothetical.

Robert M. Loeb: -- if she had proven those things, so she alleged them --

Amy Coney Barrett: Okay.

But -- but I said just assume the facts as I told you.

Robert M. Loeb: Those could possibly -- certainly support a -- a -- a objective material change.

And Burlington Northern recognizes a change in hours, particularly when you have a -- a person who's a parent, and you look at those -- like you said in your hypothetical, you look at the objective facts of the person and then how a reasonable person would look at them, a change in hours can be.

Having a car can be.

Amy Coney Barrett: A change of responsibility.

Robert M. Loeb: Change of responsibilities can be.

If there -- if there's such that they're not -- the district court was expressive.

She alleged that it wasn't prestigious enough, but she didn't prove it. She -- and the district court said, if she had shown me any proof that there was --

Amy Coney Barrett: So, to you, this is just a dispute about the facts, this whole thing?

Robert M. Loeb: Well, the -- the facts are that the Eighth Circuit and the district court ruled based on the fact that she didn't prove those things.

She had waived those things by not briefing them at summary judgement.

And then they have the -- the --

Amy Coney Barrett: If she'd proved them, she should win?

Robert M. Loeb: She -- if she had -- if she had preserved it and proved them, then I think she -- she may have had a -- a -- a meritorious case to get to a trial, but -- but she did not. Instead, as the -- as the court of appeals said, once you eliminated all the other things that were either attributable to the FBI, which includes the car and the hours, and -- and -- and you eliminate the things that she waived, all that's left here is her personal preference that she -- instead of being in the Intelligence Division, she -- she wanted to stay in the Intelligence Division over at Department 5, she admits it's commonplace in the St. Louis work -- police department to move people around based on safety needs. She herself has been moved several times in and out of the Intelligence Division. She admits when a new supervisor comes in that they commonly --

Amy Coney Barrett: But it's her preference, and let's say the supervisor -- so -- so let's say that she doesn't prove all of the other things that we're disputing and talking about here, like the FBI stuff. She says, I really like this job better.

This is my preference.

And he says, sorry, I prefer working with men.

Robert M. Loeb: Then I think you would -- that's the other half of your question, and thanks for going back to that -- is you would have to exam that through the stigmatic lens and look at whether the statement there labeling women as less than is creating a -- a -- a -- a -- a workforce where people are unequal and it's -- it's harmful just to work in that environment. So it very could be that overt statement, whether stated to her or it's stated as a class matter, in which case she might have an (a)(2) claim, might in -- in some cases support the -- the requirement of objective material harm.

But what you don't get to do is litigate about every assignment in the workplace, every little -- you know, whether you get this stapler or this pen and to say, well, I think it's all being done to me for this reason, and now you get to -- get to summary judgment and you get to go on to trial because, as this Court recognized in -- in Bostock, that a sorting out of true reasons for a job action is often hard to discern and is almost always going to go to trial. And so what you're going to be doing is having federal courts inundated with these claims with an inability to weed them out at an earlier stage.

Even if --

Brett M. Kavanaugh: Are you aware of cases about pens or colors of offices?

Robert M. Loeb: There are cases about moving from identical office from here to there and the -- and -- and the personal preference --

Brett M. Kavanaugh: About pens? I mean, you know, I -- I don't think -- when you're transferred from one office to another or one branch to another, that -- that's a lot different, it strikes me, than --

Robert M. Loeb: Certainly, that could satisfy that as a condition.

The question is, is it a disadvantageous --

Brett M. Kavanaugh: But why, though?

Robert M. Loeb: -- condition.

Brett M. Kavanaugh: Why -- why would it satisfy the terms and conditions if you're transferred from one -- one branch to another or one division to another if all the pay is the same, the retirement is the same?

Robert M. Loeb: If you move me from our appellate group to our tax group, where I have no expertise -- (Laughter.)

Robert M. Loeb: -- you know, it's certainly going to be a -- a material change even though I'm not even changing offices.

So you just have to look at the context of whether the responsibilities are different, whether the job change is disadvantageous to you viewed through an objective lens.

That's the standard that the courts of appeals have applied for 30 years, let me give you an example, and it's a well-tried and -- and -- and tested standard. Twenty-nine years ago, Justice Sotomayor, in the Williams versus R.H. Donnelley case, as a Second Circuit judge, rejected a transfer claim where the person said I prefer to work in the Las Vegas office as opposed to here. And the transfer wasn't granted.

The person said, well, this was being done on the basis of a protected category.

Ketanji Brown Jackson: Well, that's -- that's -- that's it wasn't granted, so it's a little bit different than being forced to move there.

But can I just ask you a question? You say whether it is the -- the -- the job change is objectively disadvantage -- disadvantageous, I think, is the standard that you're imposing.

I'm wondering whether or not that same standard is -- exists across all of the categories in sub 1. In other words, does a person who's fired have to also demonstrate that that firing was objectively disadvantageous, and could the employer defend on the grounds that you went on and you got a better job and, you know, it turns out this didn't hurt you at all? Is that -- is that -- is that the sort of logical thing that one could get into if we start suggesting that there's another element related to harm in this statute?

Robert M. Loeb: I think there's an ambiguity about whether the "discriminate against" language applies to the first two listed items --

Ketanji Brown Jackson: Mm-hmm.

Robert M. Loeb: -- hiring and firing.

Then it says, you know, otherwise discriminate and as to conditions or otherwise.

I think it's more naturally read to apply to it --

Ketanji Brown Jackson: But I'm sorry, I thought we were reading the statute in the sort of way we do where all the things are similar.

Robert M. Loeb: Well, yeah.

Ketanji Brown Jackson: So it's hard to say that "discriminate against" would be that different, right?

Robert M. Loeb: Yes, and I -- I think "discriminate against" is modifying those as well and -- and it should be read similarly.

Ketanji Brown Jackson: So, if that's true, then we would expect the other two to work in the same way.

So is it your position that we have a scenario in which a person who has actually been fired also has to demonstrate based on objective realties or whatnot that that firing was harmful to them?

Robert M. Loeb: I think, as this Court has -- as Justice O'Connor has said, that hirings and firings are quintessentially injurious.

Ketanji Brown Jackson: And why isn't this the same, being treated differently -- being forced to move to a different set of circumstances --

Robert M. Loeb: Because --

Ketanji Brown Jackson: -- which is how we're defining "transfer."

Robert M. Loeb: Because, as this Court said in Burlington Northern, while many transfers and reassignments will be injurious, not all will, and you need to look at the particular context. We're not -- and -- and so, in a case like this, where someone is moved on a regular basis between departments and where the only thing she can point to as far as -- not -- not less supervisory responsibilities, no -- not different -- no different pay, no different conditions, no different benefits, and she's waived all these other aspects, and all you're left with is "I just prefer one over the other," that cannot be the basis of a federal lawsuit, Your Honor.

Brett M. Kavanaugh: But --

Robert M. Loeb: Otherwise, you're just opening the door to anything.

Neil Gorsuch: Let me -- let me --

Brett M. Kavanaugh: -- the premise of your argument, I think, is that discrimination itself is not a harm.

Robert M. Loeb: You know, if -- if -- I don't think it's impossible to read the statute in the very broad way they suggest.

Let me explain to you a couple reasons why you should not. First of all, it has been read that way, and it's been applied for 30 years in the courts of appeals.

It's consistent with this Court's (a)(1) precedent saying there needs to be disadvantageous terms. But also, under this Court's trifle doctrine, you don't -- you don't lightly assume that Congress is trying -- is legislating as to minor job actions, minor harms, personal preferences, and --

Ketanji Brown Jackson: I'm sorry, I don't understand your answer to Justice Kavanaugh's question.

So discrimination itself is or is not a harm?

Robert M. Loeb: Is not by itself a harm. There's two elements here.

There's an element of disadvantageous terms and -- and -- and harm. And often there may be -- they will run together.

In some cases, it'll be easy to show the harm.

But you just don't get to presume it. They say you just presume the harm in every case --

Neil Gorsuch: Let me -- let me try it this way, Mr. Loeb.

Good to see you. I understand your point that Oncale and in Burlington Northern and elsewhere, we've said that "discriminate" means treat worse than, injure the plaintiff.

Got it. But I think we've also kind of indicated in our cases that when you treat someone worse than another person because of race or sex, that's kind of the end of it, and we -- there isn't a further inquiry into how bad you -- how badly you treated somebody worse.

A -- a minor treating worse on the basis of sex or race is something Congress in 1964 in a very short and sweet statute, 28 pages long but profound, said that the law will no longer tolerate. And once the courts get into the business of asking whether that injury is material or a reasonable person would be offended by it, that's a whole different extra textual layer that's going to weed out a bunch of claims based on a judge's sensibilities about how -- how bad is bad enough.

Thoughts?

Robert M. Loeb: I, you know, just strongly disagree with that.

As -- as Justice Scalia said, the language in the statute, the text itself, this is a textual argument, it says "discriminate against." That requires that --

Neil Gorsuch: I'm spotting you all of that, right? I'm spotting you all of that. "Discriminate against" means treating somebody worse.

That implies an injury.

But Congress could say that anytime you treat somebody worse because of their race or their sex, you are -- you have a claim --

Robert M. Loeb: I think that --

Neil Gorsuch: -- and that layering on top of that, where do we get that in the statute, a material harm? How do -- or an objective person or a reasonable person or whatever construct we come up with that's artificial, right, is going to weed out claims that Congress in 1964 thought profoundly important to include.

Robert M. Loeb: You know, Congress also, as this Court has recognized repeatedly, was -- was trying to preserve management prerogatives and wasn't trying to open up the doors for every little action in the workplace to be brought. So there was a -- it was a -- a balanced approach. And this Court should not lightly presume, especially given the trifle principle, which Justice Katsas explained applies with full force here, should not lightly assume that Congress wanted to simply conflate the harm and the intent requirement where basically you're reading the language "discriminate against" out of the statute.

You could just say --

Elena Kagan: But isn't the -- the -- the trifle principle just inconsistent with the idea that -- the idea of stigmatic injury? I mean, we've recognized over and over again that discrimination itself can profoundly injure people, just the -- the fact itself that you're being treated differently from somebody else based on your race, based on your sex, et cetera.

I mean, so as to -- as to anything, as to pens, as to water fountains, as to anything.

Robert M. Loeb: Stigma flows from the -- - either the messaging from the employer saying I am going to give all people this protected status, views of the alley, that's what they deserve.

That's a stigma, right? We could -- that's -- this Court has recognized in the harassment cases and outside of it that stigma is a -- is a material harm and it can be enough. You would look to it through an objective lens. And -- and that is completely consistent with our opinion.

But that doesn't mean you just wipe away the harm requirement. And, again, what --

Brett M. Kavanaugh: But doesn't -- oh, keep going.

Sorry.

Robert M. Loeb: What work is the word -- is the words "discriminate against" doing if you take that view? The statute says because of protected status.

It could say change of condition because of protected status.

You don't need the words "discriminate against." If you listen to their arguments, they are basically admitting that language has no force and is superfluous and is redundant.

Brett M. Kavanaugh: Well, I thought it meant treat differently because of your race, let's say --

Robert M. Loeb: That's the latter --

Brett M. Kavanaugh: -- and -- and then to -- does it -- that itself is a harm I've always assumed.

And then the question becomes, is -- does it relate to a term, condition, or privilege of employment? And not everything in the workplace will relate to a term, condition, or privilege of employment, but transfers, I think, clearly would.

And then, when you get past that, there might be some circumstances of remedial programs or what have you that you nonetheless justify why you're treating people differently. But the idea that you're treating people differently because of their race could not be a harm, not be discrimination, I don't -- I don't really understand that.

Robert M. Loeb: Again, they could -- you -- you could just read the statute to either eliminate those words or to say discriminate between or with respect and not say against, and that last part of the statute, because a protected status would be doing all the work and you would just presume harm because you did it because of that.

And the first part of the statute, the text -- that part of the text is just being ignored. And, look, where Congress wants to be more sweeping and to really root and branch, I think was, Justice Gorsuch, your language, they know how to do it.

If you look at (e)(16) in the statute requiring the federal government, as opposed to all private employers and state and local employers, they use broader language.

Ketanji Brown Jackson: Can I ask you a question? Are you suggesting that Congress had to include a harm requirement here? I mean, are -- is it your position that it could not have focused in on the action, meaning make unlawful a circumstance in which the employer treats someone differently because of their race or gender? Let's just take out the word "discrimination" for a second. Are you saying that there had to be, maybe as a matter of constitutional authority or something, a -- a -- a harm that Congress was capturing with this statute?

Robert M. Loeb: I -- we think Congress could do that.

The question is did they do that here.

Did they mean to open up for federal lawsuits for minor actions where there's no significant harm --

Ketanji Brown Jackson: No, no, no.

I'm just asking.

So, if Congress had a value set that is similar to what others are focused on here in -- in which they thought that we are worried about employers that are treating people differently on the basis of these characteristics, we think that's a problem. Now whether or not they thought it was causing other harm in the workplace or whatnot, we think that's a problem. So my question is, could they have legislated to address that particular problem?

Robert M. Loeb: Yeah, and I think that goes to what I was -- I was saying about the federal government provision.

I think they did a much broader provision there which could be read that way. So, there, it's -- it talks about any personnel action, which is then defined under Title V, Section 2302(b), to be discrimination for or against, and in (e)(16), they say not just a personnel action, but they make very clear they want to be sweeping.

They say there shall be -- the -- the workforce shall be free from any discrimination based on the characteristics, so the --

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Alito? Justice Sotomayor?

Sonia Sotomayor: Just so I'm clear, in responding to Justice Barrett, you said it's all disputed issue.

I didn't think it was disputed that in her intelligence work she worked essentially 9 to 5 Monday through Friday, correct?

Robert M. Loeb: Correct.

Sonia Sotomayor: When she moved or was transferred, she didn't have a 9-to-5 job. It varied -- her hours varied during the week and on the weekends, correct?

Robert M. Loeb: Absolutely correct.

Sonia Sotomayor: It's not disputed that she had a private car in the Intelligence Division that was taken away from her when she went to the other position, correct?

Robert M. Loeb: Correct.

Sonia Sotomayor: And there is no dispute that she had to wear a uniform where she wore plain clothes previously, correct?

Robert M. Loeb: Yeah.

So --

Sonia Sotomayor: Now -- now stop.

Robert M. Loeb: Okay.

Sonia Sotomayor: Just answer my question.

Robert M. Loeb: She alleges all those things but didn't argue them at summary judgment.

Sonia Sotomayor: Seems -- all right.

Are they material?

Robert M. Loeb: They certainly could be.

Sonia Sotomayor: Are -- what wouldn't make them material? What objective facts would not make them material?

Robert M. Loeb: You know, if --

Sonia Sotomayor: I don't understand your test, is what I'm saying.

Robert M. Loeb: No, and -- and the role --

Sonia Sotomayor: It's a change in the terms, conditions, and privileges of the two positions.

You're saying we have to overlay that with some sort of objective test.

Does that mean she has to prove that she has children at home at night or that she has to take care of her parents on the weekend? Are we then individualizing the test to find out whether she was somehow injured more than in her personal preference? I don't understand what you're saying.

Robert M. Loeb: Well, in -- in Burlington Northern, this Court said you look at the -- the particular context of the individual and then see whether a reasonable objective person would have found so.

Sonia Sotomayor: Okay.

You've answered my question.

We're -- we're --

John G. Roberts, Jr.: Justice Kagan? Justice Kavanaugh? Justice Barrett? Justice Jackson? Okay.

Thank you, counsel. Rebuttal, Mr. Wolfman?

Brian Wolfman: Yes.

Briefly, Your Honor.

The -- I want to pick up where the discussion just left off, because I think Justice Sotomayor's question and some of the earlier questions on the topic of what one has to show under these material harm-type, objective tangible harm-type standards have been encapsulated by the D.C. Circuit's opinion in Chambers and I want to mention it. These cases, meaning these types of cases, asking the question whether something is harmful enough 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. I would add to that far removed is an understatement.

The -- the -- the -- the statute doesn't pose that question, and that's the problem.

But the -- the use of judicial resources is an important point. So opposing counsel has said the courts have been applying these standards for 30 years.

Some of the lower courts have, true, and the results are stunning. AutoZone, mentioned by the Assistant Solicitor General, the Hamilton case, the Threat case, where there's a policy based on the color of the officer's skin to quote Judge Sutton.

I point the Court to the amicus briefs that go through these cases in quite a good bit of detail. Just a few more points. As Justice Kavanaugh's question posed, the -- if the policy is covert until discovery, then it doesn't impose a stigmatic harm.

It imposes a purely dignitary harm.

That too is actionable under Title VII.

And it becomes stigmatic when it's uncloaked for all the world to see.

But, in either case, this -- the policy violates the statute. The gender cases that we've been discussing, the exceptions, the outlier cases do not help the City at all because every time you flip the scenario to race, religion, or national origin, the City loses.

That shows those are outliers.

The City's position is a cross-cutting position, and it is wrong. Unless the Court has further questions?

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.