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Brooklyn Law Review

Zach Islam

Abstract

Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with courts awarding employer defendants summary judgment at higher rates than defendants in any other area of substantive federal law. As such, the DC Circuit’s decision in Chambers v. District of Columbia sought to remedy this problem by eliminating the adverse employment action test in lateral job-transfer cases. But unfortunatley, its reasoning was as dangerous as the adverse employment action test itself. Chambers not only created a circuit split, but also a high potential for doctrinal instability by ignoring the fundamental principle of de minimis harm that forms the backbone of every federal statute. Accordingly, this note seeks to remedy the shortcomings of Chambers by presenting a new, yet familiar approach to define harm in Title VII disparate treatment and retaliation cases that promotes the de minimis principle, Article III standing requirements, and the plain text and policy of Title VII all in one go. Borrowing from the hostile work environment framework, the test would require courts to ask how severe or pervasive the acts of discrimination underlying the claim are rather than focusing on materially adverse changes to an employee’s work. It is a simple and sensible approach to combat the evil of workplace discrimination.

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