U.S. Department
of Justice
Peterson v. Linear Controls Brief as Amicus
No. 18-1401
In the Supreme Court of the United States
DAVID D. PETERSON, PETITIONER
v.
LINEAR CONTROLS, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
ERIC S. DREIBAND
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
ELLIOTT M. DAVIS
Acting Principal Deputy
Assistant Attorney General
ALEXANDER V. MAUGERI
Deputy Assistant Attorney General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor General
TOVAH R. CALDERON
ANNA M. BALDWIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
SHARON FAST GUSTAFSON
General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
ANNE W. KING
Attorney
Equal Employment
Opportunity Commission
Washington, D.C. 20507
QUESTION PRESENTED
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq., makes it unlawful for a private employer
or a state or local government “to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. 2000e-2(a)(1).
The question presented is whether that prohibition
includes discriminatory working conditions, or is instead
limited to discrimination in “ultimate employment
decisions,” such as hiring, granting leave to, discharging,
promoting, or compensating individuals.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement:
A. Statutory background ....................................................... 2
B. Proceedings below ............................................................. 3
Discussion ...................................................................................... 6
A. The decision below is incorrect ........................................ 7
B. The decision below conflicts with the decisions of
other courts of appeals .................................................... 18
C. The question presented warrants review in
this case ............................................................................ 20
Conclusion ................................................................................... 24
TABLE OF AUTHORITIES
Cases:
Begay v. United States, 553 U.S. 137 (2008) ....................... 12
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998) .............................................................................. 16, 17
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006) ...................................... 2, 7, 10, 17, 18, 20
Chuang v. University of California Davis,
225 F.3d 1115 (9th Cir. 2000) ............................................. 18
Clark v. Martinez, 543 U.S. 371 (2005) ............................... 13
Davis v. Team Elec. Co., 520 F.3d 1080
(9th Cir. 2008) ...................................................................... 19
Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) ........... 11, 12, 20
EEOC v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015).................................................. 10, 12, 14
Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) ........... 19
Forgus v. Mattis, 753 Fed. Appx. 150
(4th Cir. 2018), petition for cert. pending,
No. 18-942 (filed Jan. 15, 2019) .................................... 15, 16
(III)
IV
Cases—Continued: Page
Green v. Administrators of the Tulane Educ. Fund,
284 F.3d 642 (5th Cir. 2002) ................................................. 5
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ......... 8, 9, 10
Lewis v. City of Chicago, 560 U.S. 205 (2010) .................... 7
McCoy v. City of Shreveport, 492 F.3d 551
(5th Cir. 2007) ........................................... 5, 11, 12, 13, 18, 22
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) .................................................................................. 2, 9
Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986) ................................................... 7, 8, 9, 13
Michael v. Caterpillar Fin. Servs. Corp.,
496 F.3d 584 (6th Cir. 2007), cert. denied,
552 U.S. 1258 (2008) ............................................................ 18
Mont v. United States, 139 S. Ct. 1826 (2019) .................... 22
Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22
(2018) ...................................................................................... 7
National R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).............................................................. 20
Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ............................ 22
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998) ........................................................... 8, 10
Outley v. Luke & Assocs., Inc., 840 F.3d 212
(5th Cir. 2016) ...................................................................... 19
Ortiz-Diaz v. United States Dep’t of Hous. &
Urban Dev., 867 F.3d 70 (D.C. Cir. 2017) .............. 6, 15, 19
Page v. Bolger, 645 F.2d 227 (4th Cir.), cert. denied,
454 U.S. 892 (1981).............................................................. 12
Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) .............. 18
Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560
(2012) ...................................................................................... 7
Tart v. Illinois Power Co., 366 F.3d 461
(7th Cir. 2004) ...................................................................... 19
V
Cases—Continued: Page
United States v. Williams, 504 U.S. 36 (1992) ................... 22
University of Texas Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013).................................................... 7, 14, 21
Vance v. Ball State Univ., 570 U.S. 421 (2013) ................... 13
Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818
(5th Cir. 2019) ...................................................... 6, 14, 16, 19
Wheat v. Florida Parish Juvenile Justice Comm’n,
811 F.3d 702 (5th Cir. 2016) ............................................... 16
Statutes:
Age Discrimination in Employment Act of 1967,
29 U.S.C. 621 et seq. ............................................................ 21
29 U.S.C. 623(a)(1) ........................................................... 21
Americans With Disabilities Act of 1990,
42 U.S.C. 12101 et seq. ........................................................ 21
42 U.S.C. 12112(a) ........................................................... 21
Civil Rights Act of 1964, Tit. VII,
42 U.S.C. 2000e et seq. ............................................... passim
42 U.S.C. 2000e(a)-(b) ....................................................... 2
42 U.S.C. 2000e-2(a)(1) ( § 703(a)(1))..................... passim
42 U.S.C. 2000e-2(a)(2) ( § 703(a)(2)) ............... 2, 3, 14, 15
42 U.S.C. 2000e-2(m) ....................................................... 10
42 U.S.C. 2000e-3(a) (§ 704(a)) ............................. 3, 17, 18
42 U.S.C. 2000e-5(f )(1) ...................................................... 1
42 U.S.C. 2000e-16 ............................................................. 1
42 U.S.C. 2000e-16(a) (§ 717(a)) ........................... 3, 12, 15
18 U.S.C. 1514A(a) ................................................................. 21
21 U.S.C. 399d(a) ................................................................... 21
49 U.S.C. 42121(a) ................................................................. 21
VI
Miscellaneous: Page
Equal Employment Opportunity Comm’n:
Compliance Manual (2006) ............................................. 8
Statutes by Issue (Charges filed with EEOC),
FY 2010-FY 2019, https://go.usa.gov/xdBBu
(last visited Mar. 20, 2020) ........................................ 20
Title VII of the Civil Rights Act of 1964
Charges (Charges filed with EEOC),
FY 1997–FY 2019, https://go.usa.gov/xdBK3
(last visited Mar. 20, 2020) ........................................ 21
Exec. Order No. 11,246, 30 Fed. Reg. 12,319
(Sept. 28, 1965) .................................................................... 21
Office of Fed. Contract Compliance Programs,
U.S. Dep’t of Labor, Federal Contract Compliance
Manual, https://go.usa.gov/xdB8t (last visited
Mar. 20, 2020) ...................................................................... 21
Random House Dictionary of the English Language
(1966) ...................................................................................... 8
Webster’s New International Dictionary of the
English Language (2d ed. 1958) ......................................... 8
In the Supreme Court of the United States
No. 18-1401
DAVID D. PETERSON, PETITIONER
v.
LINEAR CONTROLS, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
This brief is submitted in response to the Court’s order
inviting the Solicitor General to express the views
of the United States. In the view of the United States,
the petition for a writ of certiorari should be granted.
INTEREST OF THE UNITED STATES
This case concerns the scope of the employmentdiscrimination
protections in Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e et seq. The Equal Employment
Opportunity Commission (EEOC) enforces Title
VII’s anti-discrimination provisions against private employers.
The Department of Justice enforces those provisions
against state- and local-government employers.
42 U.S.C. 2000e-5(f )(1). Title VII also includes antidiscrimination
provisions applicable to the federal government
as an employer. 42 U.S.C. 2000e-16. The
United States accordingly has a substantial interest in
this Court’s resolution of the question presented.
(1)
2
STATEMENT
Petitioner, who worked for respondent on an offshore
oil platform, alleges that he and other “black employees
had to work outside and were not permitted water
breaks, while the white employees worked inside
with air conditioning and were given water breaks.”
Pet. App. 2a. Petitioner sued respondent for racial discrimination
“with respect to his compensation, terms,
conditions, or privileges of employment.” 42 U.S.C.
2000e-2(a)(1). The district court granted summary
judgment to respondent. Pet. App. 11a-47a. The court
of appeals affirmed. Id. at 1a-10a.
A. Statutory Background
Congress enacted Title VII of the Civil Rights Act of
1964 to “assure equality of employment opportunities
and to eliminate * * * discriminatory practices and
devices” in the workplace. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 800 (1973). This case involves
“Title VII’s core antidiscrimination provision,” Section
703(a)(1). Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 61 (2006). Section 703(a)(1) makes it unlawful
for a private employer or a state or local government
“to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C.
2000e-2(a)(1); see 42 U.S.C. 2000e(a)-(b).
Title VII includes several other relevant provisions.
Section 703(a)(2) makes it unlawful for a private employer
or a state or local government “to limit, segregate,
or classify * * * employees or applicants for employment
in any way which would deprive or tend to deprive
any individual of employment opportunities or
3
otherwise adversely affect his status as an employee,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. 2000e-2(a)(2). Section 704(a)
prohibits retaliation by a private employer or a state or
local government against employees or applicants for
engaging in conduct protected by Title VII. 42 U.S.C.
2000e-3(a). And Section 717(a) provides that federalsector
“personnel actions * * * shall be made free from
any discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. 2000e-16(a).
B. Proceedings Below
1. Petitioner is an electrician formerly employed by
respondent to perform construction and maintenance
on offshore oil platforms. Pet. App. 2a, 11a. This case
involves petitioner’s work on a platform in the Gulf of
Mexico during an 11-day period in July 2015. Id. at 23a.
Petitioner alleges that, during that period, he and other
“black crew members were required by [respondents’]
white supervisors to work every day outside, in the
heat[,] while white crew members worked exclusively
inside, in air-conditioned facilities.” Ibid. (citation omitted).
Petitioner further alleges, “if any black crew member
* * * took a water break inside, the white supervisors
would curse and yell and order him back to work.”
Ibid. (citation omitted). According to petitioner, black
employees on the platform asked their supervisors to
order a “rotation from outside to inside among white
and black crew members,” but “no [such] rotation” occurred.
Ibid. (citation omitted).
2. After resigning his position, petitioner filed an
EEOC charge alleging, inter alia, racial discrimination
4
in violation of Title VII. Pet. App. 18a. The EEOC issued
a Notice of Right to Sue “at [petitioner’s] request.”
D. Ct. Doc. 29-3, at 107 (Feb. 22, 2016).1
Petitioner filed suit in federal court. Pet. App. 12a.
As relevant here, he claimed that respondent had violated
Section 703(a)(1) during his offshore assignment
in July 2015. Id. at 31a. Specifically, he alleged that
requiring black employees to “work every day outside
while the [white] crew members worked exclusively inside
in air-conditioned facilities,” id. at 34a, constituted
discrimination “with respect to his compensation, terms,
conditions, or privileges of employment, because of
* * * race,” 42 U.S.C. 2000e-2(a)(1). He testified in a
deposition and submitted declarations from two witnesses
corroborating his account. Pet. App. 34a-36a.
Respondent produced testimony to the contrary. See
id. at 34a-35a.
The district court granted respondent’s motion for
summary judgment. Pet. App. 11a. The court first held
that petitioner had “identified no similarly situated
[white] employee who * * * was allowed to work exclusively
indoors.” Id. at 35a. The court stated that petitioner’s
deposition contained only “general claims that
[white] workers were treated better than him.” Ibid.
And the court excluded the declarations supporting petitioner
because the court found they lacked an adequate
foundation or personal knowledge. Id. at 36a-38a.
The district court further held that “[e]ven if [petitioner]
had identified a similarly situated [white] comparator,”
his claims would “still fail as a matter of law
because he has not alleged or testified to any adverse
___________
1 The district court’s statement that “the EEOC ruled in [respondent’s]
favor and found that the evidence did not establish a violation
of Title VII” is accordingly incorrect. Pet. App. 12a.
5
employment action.” Pet. App. 38a-39a. The court explained
that, under Fifth Circuit precedent, Section
703(a)(1)’s prohibition on discrimination “with respect
to [an employee’s] compensation, terms, conditions, or
privileges of employment,” 42 U.S.C. 2000e-2(a)(1), “ ‘include[
s] only ultimate employment decisions such as
hiring, granting leave, discharging, promoting, or compensating,’
” Pet. App. 39a (quoting Green v. Administrators
of the Tulane Educ. Fund, 284 F.3d 642, 657
(5th Cir. 2002)). Under that interpretation, “[a]ctions
such as assigning an employee more difficult work” and
“giving employees unequal break times * * * are not
‘adverse actions’ within the meaning of Title VII.” Id.
at 40a (citation omitted).
3. The court of appeals affirmed. Pet. App. 1a-10a.
The court did not review the district court’s evidentiary
ruling or its conclusion that petitioner had not identified
a white comparator. Id. at 4a. The court of appeals instead
held that petitioner “cannot satisfy Title VII’s adverse
employment action requirement,” even “[a]ssuming
the declarations identify similarly situated comparators.”
Ibid. The court explained that it “strictly construes
adverse employment actions to include only ‘ultimate
employment decisions,’ such as ‘hiring, granting
leave, discharging, promoting, or compensating.’ ” Ibid.
(quoting McCoy v. City of Shreveport, 492 F.3d 551, 559
(5th Cir. 2007) (per curiam)). Applying that interpretation,
the court held that, even if petitioner’s allegation
“that he and his black team members had to work outside
without access to water, while his white team members
worked inside with air conditioning,” is “[t]ak[en]
* * * as true,” the district court “did not err in holding
6
that these working conditions are not adverse employment
actions because they do not concern ultimate employment
decisions.” Ibid.
DISCUSSION
The court of appeals erred in holding that racial discrimination
in “working conditions,” Pet. App. 4a, is not
discrimination “with respect to * * * terms, conditions,
or privileges of employment,” 42 U.S.C. 2000e-2(a)(1).
The court’s reasoning that Section 703(a)(1) prohibits
discrimination only in “ultimate employment decisions,”
Pet. App. 4a, has no foundation in Title VII’s text, Congress’s
purpose, or this Court’s precedents. And the
startling result in this case—that an employer may racially
segregate its workforce by requiring black employees
to work outside in the summer heat while white
employees work indoors with air conditioning—underscores
the defects in the court of appeals’ position.
Other courts of appeals have expressly rejected the
reading of Title VII adopted by the Fifth Circuit below.
And while some other Fifth Circuit decisions suggest a
different interpretation limiting Section 703(a)(1) to certain
“significant and material” employment actions,
Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824
(2019) (citation omitted), that reading is equally atextual
and mistaken. See Ortiz-Diaz v. United States
Dep’t of Hous. & Urban Dev., 867 F.3d 70, 81 (D.C. Cir.
2017) (Kavanaugh, J., concurring); Gov’t Br. in Opp. at
13-17, Forgus v. Esper, No. 18-942 (May 6, 2019) (Gov’t
Forgus Br.). The question presented is important, frequently
recurring, and suitable for resolution in this
case. The petition for a writ of certiorari therefore
should be granted.
7
A. The Decision Below Is Incorrect
1. The court of appeals held that Section 703(a)(1)
prohibits discrimination only in “ultimate employment
decisions.” Pet. App. 4a. That reading contradicts Title
VII’s text, structure, and purpose.
a. In interpreting Title VII, this Court looks to “the
language of ” the statute. Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 64 (1986); see, e.g., University of
Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352-353
(2013); Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 62-64 (2006). That approach reflects this
Court’s “charge * * * to give effect to the law Congress
enacted.” Lewis v. City of Chicago, 560 U.S. 205, 215,
217 (2010); cf. Mount Lemmon Fire Dist. v. Guido,
139 S. Ct. 22, 24-27 (2018).
The key text in this case, Section 703(a)(1), makes it
unlawful for a private employer or a state or local government
“to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.”
42 U.S.C. 2000e-2(a)(1). Petitioner does not allege that
respondent made a “hir[ing]” or “discharge” decision
based on his race, nor that race played a role in his
“compensation.” Ibid. This case accordingly turns on
whether respondent “discriminate[d] against” petitioner
“with respect to his * * * terms, conditions, or
privileges of employment.” Ibid.
“When a term goes undefined in a statute,” as the
key language here does, this Court gives “the term its
ordinary meaning.” Taniguchi v. Kan Pac. Saipan,
Ltd., 566 U.S. 560, 566 (2012). The ordinary meaning of
8
the phrase “terms, conditions, or privileges of employment,”
42 U.S.C. 2000e-2(a)(1), plainly includes the
working conditions petitioner challenges here—the location
and nature of his job assignment, the rotation of
employees between worksites, and the availability of
breaks. See Webster’s New International Dictionary
of the English Language 556 (2d ed. 1958) (defining “conditions”
to include “[a]ttendant circumstances * * * as
[in], living conditions; playing conditions”); see also,
e.g., Random House Dictionary of the English Language
306 (1966) (defining “conditions” to include “situation
with respect to circumstances”). That reading accords
with common sense. A typical employee asked to
describe his “terms” or “conditions * * * of employment,”
42 U.S.C. 2000e-2(a)(1), would almost surely
mention where he works and what he does. See EEOC
Compliance Manual § 15-VII(B)(1) (2006) (“Work assignments
are part-and-parcel of employees’ everyday
terms and conditions of employment.”).
Respondent contends (Br. in Opp. 11, 15-17) that petitioner’s
allegations do not implicate his “terms, conditions,
or privileges of employment” because working
outdoors was part of his job description. But this Court
has rejected that line of argument, holding that Section
703(a)(1) “not only covers ‘terms’ and ‘conditions’ in the
narrow contractual sense, but ‘evinces a congressional
intent to strike at the entire spectrum of disparate treatment
of men and women in employment.’ ” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)
(quoting Meritor, 477 U.S. at 64); see, e.g., Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The fact that
a job description includes a particular duty thus does
not license an employer to discriminate among employees
in their performance of that duty.
9
In interpreting Section 703(a)(1), moreover, this Court
has held that discrimination in the “terms, conditions,
or privileges of employment,” 42 U.S.C. 2000e-2(a)(1),
includes “discrimination based on [a protected trait
that] has created a hostile or abusive work environment,”
Meritor, 477 U.S. at 66. The Court has grounded such
hostile-work-environment claims in Section 703(a)(1)’s
text by explaining that “the phrase ‘terms, conditions or
privileges of employment’ in Title VII is an expansive
concept which sweeps within its protective ambit the
practice of creating a working environment heavily
charged with * * * discrimination.” Ibid. (brackets and
citation omitted). Respondent’s contention that Section
703(a)(1) does not apply to discriminatory working conditions
like those at issue here cannot be squared with
this Court’s reading of the statute. See Harris, 510 U.S.
at 25 (Scalia, J., concurring) (explaining that “the term
‘conditions of employment’ ” in Section 703(a)(1) supports
a claim that “working conditions have been discriminatorily
altered”).
Respondent’s position also conflicts with Title VII’s
objectives. Congress enacted Title VII to “assure equality
of employment opportunities and to eliminate * * *
discriminatory practices and devices” in the workplace.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
(1973). Allowing an employer to make black employees
“work every day outside, in the heat[,] while white crew
members work[] exclusively inside, in air-conditioned
facilities,” Pet. App. 23a (citation omitted), is irreconcilable
with that purpose. Indeed, while it may be possible
to posit even more egregious discrimination in working
conditions (e.g., requiring only black employees to handle
toxic waste), the facts alleged here present the kind
of extreme scenario that would typically arise only as a
10
hypothetical to illustrate the flaws in respondent’s interpretation
of the statute.
Importantly, there are limits on the scope of the
“terms, conditions, or privileges of employment” covered
by Section 703(a)(1). 42 U.S.C. 2000e-2(a)(1). But
those limits come from the statutory text, not from
“add[ing] words to the law to produce what is thought
to be a desirable result.” EEOC v. Abercrombie & Fitch
Stores, Inc., 575 U.S. 768, 774 (2015); see Oncale, 523 U.S.
at 80. As this Court has explained in the hostile-workenvironment
context, “merely offensive” conduct alone
does not violate Section 703(a)(1), because it does not
“alter[] the conditions of the victim’s employment.”
Harris, 510 U.S. at 21-22. Likewise, Section 703(a)(1)
“protects an individual only from employment-related
discrimination.” White, 548 U.S. at 63 (emphasis added).
An employer who engages in discrimination with no
connection to the workplace therefore does not violate
Section 703(a)(1).
Moreover, identifying an employer action that implicates
the “terms, conditions, or privileges of employment”
satisfies only one element of a Section 703(a)(1) claim.
42 U.S.C. 2000e-2(a)(1). To state a Section 703(a)(1) violation,
an employee must also establish that the employer
“discriminate[d] * * * because of ” a protected
trait. Ibid.; see 42 U.S.C. 2000e-2(m). “The critical issue”
in evaluating such a claim “is whether members of
[a protected category] are exposed to disadvantageous
terms or conditions of employment to which [others] are
not exposed.” Oncale, 523 U.S. at 80 (citation omitted);
see, e.g., White, 548 U.S. at 59. Thus, making distinctions
between employees based on relevant differences
in a way that does not create disadvantages does not vi-
11
olate Section 703(a)(1). For example, employers generally
may maintain equivalent, sex-specific bathrooms or
changing facilities without violating Section 703(a)(1).
Such facilities recognize relevant differences between
male and female employees and thereby treat similarly
situated men and women the same, provided that the
facilities are of comparable quality and convenience.
b. The court of appeals did not attempt to square its
position with Section 703(a)(1)’s text. The court instead
relied on circuit precedent that “strictly construes” Section
703(a)(1) “to include only ‘ultimate employment decisions,’
such as ‘hiring, granting leaving, discharging,
promoting, or compensating.’ ” Pet. App. 4a (quoting
McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.
2007) (per curiam)). Because petitioner’s allegation of
discriminatory “working conditions” did not involve an
“ultimate employment decision[],” the court held that
he could not “satisfy Title VII’s adverse employment action
requirement.” Ibid.
The court of appeals adopted its “ultimate employment
decisions” limitation a quarter-century ago in Dollis
v. Rubin, 77 F.3d 777 (5th Cir. 1995) (per curiam).
The court there stated, without reference to the statutory
text, that “Title VII was designed to address ultimate
employment decisions, not to address every decision
made by employers that arguably might have some
tangential effect upon those ultimate decisions.” Id. at
781-782. The court then defined “ultimate employment
decisions” based on another court of appeals’ observation
“that Title VII discrimination cases have focused
upon ultimate employment decisions such as hiring,
12
granting leave, discharging, promoting, and compensating.”
Id. at 782 (citing Page v. Bolger, 645 F.2d 227, 233
(4th Cir.) (en banc), cert. denied, 454 U.S. 892 (1981)).2
The court of appeals’ limitation of Section 703(a)(1)
to “ultimate employment decision[s],” Pet. App. 4a, is
flawed. Most fundamentally, “Title VII contains no
such limitation.” Abercrombie, 575 U.S. at 773 (declining
to read an unstated limitation into Title VII). To the
contrary, the text and structure of Section 703(a)(1) refute
such a limitation. Section 703(a)(1) first makes it
unlawful “to fail or refuse to hire or to discharge any
individual” because of a protected trait, 42 U.S.C.
2000e-2(a)(1)—a prohibition that does involve “ultimate
employment decisions,” Pet. App. 4a. Section 703(a)(1)
then makes it unlawful “otherwise to discriminate against
any individual with respect to * * * terms, conditions,
or privileges of employment.” 42 U.S.C. 2000e-2(a)(1)
(emphasis added). That part of the statute—particularly
when set apart from hiring and firing by the word “otherwise,”
ibid.—cannot be read as limited to “ultimate employment
decisions,” Pet. App. 4a; see Begay v. United
States, 553 U.S. 137, 144 (2008) (explaining that “otherwise”
means “in a different way or manner”) (citation
omitted).
The court of appeals’ own list of “ultimate employment
decisions” highlights the disconnect with the statutory
text. Pet. App. 4a. The court identified five examples
____________
2 Dollis arose under Title VII’s federal-sector provision, which
provides that federal “personnel actions * * * shall be made free
from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. 2000e-16(a). Although that text differs from the
text of Section 703(a)(1), the Fifth Circuit regularly applies the “ultimate
employment decisions” limitation adopted in Dollis to Section
703(a)(1) cases. See, e.g., Pet. App. 4a; McCoy, 492 F.3d at 559.
13
of such decisions: “hiring, granting leave, discharging,
promoting, or compensating.” Ibid. (quoting McCoy,
492 F.3d at 559). Three of those actions—“hiring,” “discharging,”
and “compensating”—are expressly covered
by Section 703(a)(1). Ibid. The court of appeals thus
effectively reads Section 703(a)(1)’s reference to “terms,
conditions, or privileges of employment,” 42 U.S.C.
2000e-2(a)(1), to cover only decisions such as “granting
leave” and “promoting,” Pet. App. 4a (citation omitted).
That is not a plausible account of statutory language
that “strike[s] at the entire spectrum of disparate treatment
of men and women in employment.” Meritor,
477 U.S. at 64 (emphasis added; citations and internal
quotation marks omitted). By reading “ultimate employment
decisions” into the statute, Pet. App. 4a, the
Fifth Circuit thus reads “terms, conditions, or privileges
of employment,” 42 U.S.C. 2000e-2(a)(1), largely
out of the statute.
The court of appeals’ reading also departs from
this Court’s precedents. As noted above, the Court’s
hostile-work-environment decisions have interpreted
Section 703(a)(1) to support a claim that “the work environment
[may be] so pervaded by discrimination that
the terms and conditions of employment [a]re altered.”
Vance v. Ball State Univ., 570 U.S. 421, 427 (2013). But
those decisions do not indicate that the “terms and conditions
of employment” that can be altered, ibid., are
limited to “ultimate employment decisions,” such as
“discharging” an employee who is the victim of harassment,
Pet. App. 4a (citation omitted). Neither the court
of appeals nor respondent has explained how the same
statutory text can mean one thing in a hostile-workenvironment
claim but something else in a discrimination
claim like this one. Cf. Clark v. Martinez, 543 U.S.
14
371, 386 (2005) (declining to “give the same statutory
text different meanings in different cases”).
Finally, the court of appeals’ interpretation would
produce untenable results. By the court’s logic, even
brazen acts of workplace discrimination do not give rise
to a Title VII claim if they are not manifested in “ultimate
employment decisions.” Pet. App. 4a. An employer
could, for example, shut off the heat in the offices
of only racial-minority or female employees without liability
for discrimination in the “terms, conditions, or
privileges of employment.” 42 U.S.C. 2000e-2(a)(1).
That result is “inconsistent with both the text and purpose
of Title VII.” Nassar, 570 U.S. at 359.
2. While maintaining its position that “ ‘[a]dverse employment
actions include only ultimate employment decisions,’
” the Fifth Circuit has suggested in some decisions
that, “in certain cases, ‘a change in or loss of job
responsibilities … may be so significant and material
that it rises to the level of an adverse employment action.’
” Welsh, 941 F.3d at 824 (citations omitted). Respondent
observes (Br. in Opp. 25-35) that other courts
of appeals have adopted analogous formulations. But a
“significant and material” discrimination limitation on
Section 703(a)(1) suffers from the same flaws as an “ultimate
employment decisions” rule, Welsh, 941 F.3d at
824 (citations omitted)—Section 703(a)(1) “contains no
such limitation,” Abercrombie, 575 U.S. at 773.3
_________
3 Congress knows how to require a particular showing of harm for
an employment-discrimination claim. For example, Section 703(a)(2)
makes it unlawful for an employer “to limit, segregate, or classify
his employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee, because
15
a. The government recently addressed a similar interpretation
of Title VII in Forgus v. Esper, No. 18-942.
There, the Fourth Circuit applied its precedent requiring
an employee to show “some significant detrimental
effect” from alleged discrimination to state a claim under
Section 703(a)(1). Forgus v. Mattis, 753 Fed. Appx.
150, 153 (2018) (per curiam) (citation omitted), petition
for cert. pending, No. 18-942 (filed Jan. 15, 2019). The
court held that an employee who was denied a requested
“lateral” transfer—a transfer that did not involve a
change in pay or benefits—had not alleged the required
“significant detrimental effect.” Ibid. (citations omitted).
The government opposed certiorari in that case on
record-specific grounds, Gov’t Forgus Br. 8-10, but
acknowledged that the court’s interpretation of Title
VII was incorrect, even though the government had
sometimes defended that reading in the past, id. at 10-16.4
Of particular relevance here, the government explained
that discriminatorily transferring (or declining
to transfer) an employee implicates the “terms” or “conditions”
of employment under the ordinary meaning of
Section 703(a)(1). Gov’t Forgus Br. 13 (citation omitted);
accord Ortiz-Diaz, 867 F.3d at 81 (Kavanaugh, J.,
concurring) (“[T]ransferring an employee because of
the employee’s race (or denying an employee’s requested
transfer because of the employee’s race) plainly
constitutes discrimination with respect to ‘compensation,
___________
of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. 2000e-2(a)(2) (emphasis added).
4 Forgus arose under Title VII’s federal-sector provision, 42 U.S.C.
2000e-16(a), which has different language than Section 703(a)(1).
See p. 12, n.2, supra. Consistent with Fourth Circuit precedent,
however, the court and the parties analyzed the case under Section
703(a)(1). See 753 Fed. Appx. at 153.
16
terms, conditions, or privileges of employment’ in violation
of Title VII.”) (quoting 42 U.S.C. 2000e-2(a)(1)).
The government added that the Fourth Circuit’s rule
requiring “significant” discriminatory effects would produce
untenable results. Gov’t Forgus Br. 14. For example,
under that rule, paying an employee one dollar
less in annual salary based on race or sex would not be
actionable because it would not qualify as “significant,”
even though such discrimination falls squarely within
the text of Section 703(a)(1). Ibid.
The same analysis applies to the Fifth Circuit’s decisions
limiting Section 703(a)(1) to “significant and material”
discrimination. Welsh, 941 F.3d at 824 (citation
omitted). Indeed, the flawed decision in Forgus relied
in part on Fifth Circuit precedent. See 753 Fed. Appx.
at 153 (citing Wheat v. Florida Parish Juvenile Justice
Comm’n, 811 F.3d 702, 709 (5th Cir. 2016)).
b. Respondent contends (Br. in Opp. 24-28) that this
Court’s decision in Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998), supports the “significant and material”
discrimination limitation read into Section 703(a)(1)
by the Fifth Circuit and other courts of appeals. That
reasoning reflects a misunderstanding of Ellerth. See
Gov’t Forgus Br. 14-16.
Ellerth involved a claim that a supervisor had created
a hostile work environment—and thereby altered
“the terms or conditions of employment”—through “severe
or pervasive” sexual harassment of an employee.
524 U.S. at 752. The question in Ellerth was not the
substantive standard for such a claim; the question was
under what circumstances “an employer has vicarious
liability” for sexual harassment by a supervisor. Id. at
754. After reviewing agency-law principles, the Court
17
determined that vicarious liability exists “when the supervisor’s
harassment culminates in a tangible employment
action, such as discharge, demotion, or undesirable
reassignment.” Id. at 765. The Court reasoned that
such a “tangible employment action” by a supervisor
necessarily “requires an official act of the enterprise,”
and therefore supports imposing vicarious liability on
the employer. Id. at 761-762. When no such “tangible
employment action” is taken by a supervisor, the Court
explained, an employer can avoid vicarious liability in
certain circumstances by establishing an “affirmative
defense.” Id. at 764-765.
Ellerth’s identification of the “tangible employment
action[s]” that support automatic imputation of vicarious
liability to an employer says nothing about the
meaning of “terms, conditions, or privileges of employment”
in Section 703(a)(1). 42 U.S.C. 2000e-2(a)(1). Indeed,
this Court has expressly stated that Ellerth “did
not discuss the scope of ” Title VII’s “general antidiscrimination
provision,” but rather invoked the concept
of a “ ‘tangible employment action’ * * * only to ‘identify
a class of [hostile work environment] cases’ in which
an employer should be held vicariously liable (without
an affirmative defense) for the acts of supervisors.”
White, 548 U.S. at 64-65 (quoting Ellerth, 524 U.S. at
760-761) (emphases added; brackets in original). Contrary
to respondent’s contention (Br. in Opp. 24-28),
Ellerth thus provides no support for the atextual restrictions
on Section 703(a)(1) imposed by the Fifth Circuit
and other courts of appeals.5
_________
5 This Court in White held that retaliation claims under Section
704(a) may be based only on actions “that a reasonable employee
would have found * * * materially adverse.” 548 U.S. at 68. That
18
B. The Decision Below Conflicts With The Decisions Of
Other Courts Of Appeals
The decision below conflicts with the decisions of
other courts of appeals. First, the Fifth Circuit’s interpretation
of Section 703(a)(1) as prohibiting discrimination
in “only ‘ultimate employment decisions,’ ” Pet.
App. 4a (quoting McCoy, 492 F.3d at 559), conflicts with
the Sixth Circuit’s “reject[ion of] the rule that only ‘ultimate
employment decisions[]’ * * * can be materially
adverse for the purpose of a Title VII retaliation or discrimination
claim.” Michael v. Caterpillar Fin. Servs.
Corp., 496 F.3d 584, 594 (2007), cert. denied, 552 U.S.
1258 (2008). The Ninth Circuit has also rejected “the
Fifth * * * Circuit rule that only ‘ultimate employment
actions’ such as hiring, firing, promoting and demoting
constitute actionable adverse employment actions.”
Ray v. Henderson, 217 F.3d 1234, 1242 (2000) (rejecting
the rule with respect to retaliation claims); see Chuang
v. University of California Davis, 225 F.3d 1115, 1125
(9th Cir. 2000) (relying on Ray in interpreting Section
703(a)(1)).
In addition, several courts of appeals have reached
results inconsistent with the Fifth Circuit’s rejection of
petitioner’s claim. The Seventh Circuit, for example,
__________
limitation is appropriate in the retaliation context because Section
704(a) prohibits “discriminat[ion]” because of protected conduct
but—in contrast to Section 703(a)(1)—does not specify any particular
forms of discrimination. 42 U.S.C. 2000e-3(a). As the Court in
White explained, a “material adversity” limitation is necessary in
the retaliation context “to separate significant [harms] from trivial
harms” that would not have “ ‘dissuaded a reasonable worker from
making or supporting a charge of discrimination.’ ” 548 U.S. at 68
(citation omitted). In adopting that reading of the retaliation provision,
the Court expressly held that the scope of Section 703(a)(1) is
different because of its different text. Id. at 61-67.
19
reversed a district-court decision that had set aside a
jury verdict for employees who alleged a race-based reassignment
to “ditch digging duty” involving “significantly
harsher working conditions” than their prior office
jobs. Tart v. Illinois Power Co., 366 F.3d 461, 464,
473 (2004). The Fifth Circuit presumably could not
reach that result given its position that the harsher
“working conditions” identified by petitioner are not
among the “ultimate employment decisions” actionable
under Section 703(a)(1). Pet. App. 4a. Relatedly, the
Fifth Circuit has held that “imposing a higher workload”
on the alleged basis of a protected trait “does not
qualify” as actionable under Section 703(a)(1). Outley
v. Luke & Assocs., Inc., 840 F.3d 212, 217 (2016); see
Pet. App. 40a. But the Second and Ninth Circuits have
taken the opposite position—that “the assignment of a
disproportionately heavy workload” is actionable under
Section 703(a)(1). Feingold v. New York, 366 F.3d 138,
153 (2d Cir. 2004); see Davis v. Team Elec. Co., 520 F.3d
1080, 1090 (9th Cir. 2008) (similar).
To the extent the Fifth Circuit interprets Section
703(a)(1) to cover only “significant and material” discrimination,
Welsh, 941 F.3d at 824 (citation omitted),
that approach is more closely aligned with the formulations
adopted by most other circuits, see Pet. 12-16; Br.
in Opp. 26-35. But it is unclear how that standard applies
in the Fifth Circuit, given that the court continues
to articulate its “ultimate employment decisions” rule at
the same time. Welsh, 941 F.3d at 824. In any event,
the alternative formulation suggested by some Fifth
Circuit decisions and adopted by most courts of appeals
conflicts with the text and purpose of Title VII. See
Ortiz-Diaz, 867 F.3d at 81 (Kavanaugh, J., concurring);
20
pp. 15-16, supra. Even if there were not a square circuit
conflict, such a widespread misreading of a key
employment-discrimination provision would warrant
this Court’s review. See National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 108-109 (2002) (granting
certiorari to review lower courts’ “various approaches”
to a Title VII question, and adopting a different interpretation
based on “the text of the statute”).
Last May in Forgus, the government suggested
that—particularly in light of the record-specific problems
in that case—the Court might wish to allow further
percolation on this question before granting review.
See Gov’t Forgus Br. 13-14. But it does not appear that
any court has reconsidered its position in that time.
Given that many circuits have entrenched precedents
dating back decades that can only be revisited through
rehearing en banc, see, e.g., Dollis, 77 F.3d at 781-782,
it may not be practically likely that courts of appeals
will correct their own errors. The government therefore
now agrees that this Court’s review is warranted.
C. The Question Presented Warrants Review In This Case
1. The question presented is undeniably important.
Section 703(a)(1) is “Title VII’s core antidiscrimination
provision,” White, 548 U.S. at 61, and questions arise
frequently about whether employer actions fall within
the “terms, conditions, or privileges of employment,”
42 U.S.C. 2000e-2(a)(1). In recent years, the EEOC has
received between 15,000 and 19,000 Title VII administrative
charges per year asserting discrimination in the
“[t]erms [or] condition[s]” of employment. EEOC, Statutes
by Issue (Charges filed with EEOC), FY 2010-FY
2019, https://go.usa.gov/xdBBu. Those charges represent
more than a quarter of all Title VII charges received
by the EEOC in each fiscal year. See ibid.;
21
EEOC, Title VII of the Civil Rights Act of 1964 Charges
(Charges filed with EEOC), FY 1997–FY 2019, https://
go.usa.gov/xdBK3. The “proper interpretation and implementation
of ” Section 703(a)(1) thus has “central importance
to” employment-discrimination litigation. Nassar,
570 U.S. at 358 (similarly noting the large number
of EEOC charges filed under Title VII’s anti-retaliation
provision).
Clarifying the meaning of “terms, conditions, or privileges
of employment” in Section 703(a)(1) would also
have beneficial effects beyond Title VII. Other prominent
anti-discrimination statutes, such as the Age Discrimination
in Employment Act of 1967, 29 U.S.C. 621
et seq., and the Americans With Disabilities Act of 1990,
42 U.S.C. 12101 et seq., include provisions prohibiting
discrimination with respect to “terms, conditions, [or]
privileges of employment,” 29 U.S.C. 623(a)(1); 42 U.S.C.
12112(a). Numerous whistleblower-protection statutes
prohibit discrimination in the “terms” or “conditions” of
employment because of an employee’s protected conduct.
See, e.g., 18 U.S.C. 1514A(a); 21 U.S.C. 399d(a);
49 U.S.C. 42121(a). And the Department of Labor enforces
Executive Order No. 11,246, 30 Fed. Reg. 12,319
(Sept. 28, 1965), which incorporates Title VII principles
in regulating federal contractors. See Office of Fed.
Contract Compliance Programs, U.S. Dep’t of Labor,
Federal Contract Compliance Manual §§ 2E03, 2J, 2K,
https://go.usa.gov/xdB8t. Resolving the question presented
would thus have broad significance for federal
employment-discrimination law.
2. Although respondent identifies several purported
impediments to review, this case provides a suitable vehicle
for this Court to resolve the question presented.
22
Respondent first observes (Br. in Opp. 14 & n.2) that
the decision below is nonprecedential. But the court of
appeals relied on a precedential decision for its relevant
holding. See Pet. App. 4a (citing McCoy, 492 F.3d at
559). And it is not uncommon for this Court to review
unpublished decisions that resolve important questions
based on prior circuit precedent. See, e.g., Mont v.
United States, 139 S. Ct. 1826, 1831 (2019); Nieves v.
Bartlett, 139 S. Ct. 1715, 1721 (2019).
Respondent also contends (Br. in Opp. 18-21) that
petitioner failed to preserve the question presented in
the court of appeals. But this Court may review “an issue
not pressed [below] so long as it has been passed
upon.” United States v. Williams, 504 U.S. 36, 41
(1992). And “[t]There is no doubt in the present case
that the [court of appeals] decided the crucial issue,” id.
at 43, when it held that Section 703(a)(1) prohibits discrimination
in “only ‘ultimate employment decisions,’
such as ‘hiring, granting leave, discharging, promoting,
or compensating,’ ” Pet. App. 4a (citation omitted); see
Pet. i. Given the Fifth Circuit’s deeply entrenched precedent,
moreover, it seems unlikely that petitioner’s raising
the issue would have affected that court’s resolution
of his appeal.
Finally, respondent contends (Br. in Opp. 14-17, 36-
37) that resolving the question presented would not alter
the outcome of the case because petitioner cannot
succeed on the merits. The record, however, does not
clearly support that assertion. Petitioner testified in a
deposition that black crew members were assigned to
work outside “in the heat,” while white crew members
worked inside, and that his supervisors refused his requests
for a “rotation.” D. Ct. Doc. 33-6, at 20, 26-28
(June 29, 2017). Petitioner also submitted declarations
23
from two witnesses who purported to corroborate his
account. D. Ct. Doc. 33-1, at 1-2 (June 29, 2017); D. Ct.
Doc. 33-2, at 1-3 (June 29, 2017). The district court rejected
those declarations for failure to establish foundation
or personal knowledge and concluded that petitioner
had failed to identify similarly situated white
comparators. Pet. App. 35a-38a. The court of appeals,
however, “[a]ssum[ed]” that “the declarations [had]
identif[ied] similarly situated comparators,” and then
resolved the case on the purely legal ground that petitioner’s
allegations did not state a claim under Section
703(a)(1). Id. at 4a.
If this Court were to reverse the court of appeals’
decision on that legal question, the lower courts could
determine on remand whether petitioner presented sufficient
evidence to allow his claim to proceed under a
proper interpretation of Section 703(a)(1). The court of
appeals could also, if appropriate, review the district
court’s ruling on the admissibility of the declarations
supporting petitioner’s account. The government takes
no position on the proper resolution of those case-specific
issues. But it appears from the record that petitioner
has at least some possibility of surviving a motion for
summary judgment. Respondent’s assertion that this
Court’s resolution of the question presented could not
have any practical effect is accordingly unsound.
24
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
ERIC S. DREIBAND
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
ELLIOTT M. DAVIS
Acting Principal Deputy
Assistant Attorney General
ALEXANDER V. MAUGERI
Deputy Assistant Attorney
General
CHRISTOPHER G. MICHEL
Assistant to the Solicitor
General
TOVAH R. CALDERON
ANNA M. BALDWIN
Attorneys
SHARON FAST GUSTAFSON
General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
SYDNEY A.R. FOSTER
Assistant General Counsel
ANNE W. KING
Attorney
Equal Employment
Opportunity Commission
MARCH 2020