The Legal Aid Society signed onto an amicus brief with the National Employment Law Project at the U.S. Supreme Court to argue that the Eight Circuit’s framing of Title VII as requiring “significant disadvantage” for a cognizable claim of gender discrimination tacitly blesses numerous forms of workplace discrimination, contravening the clear text of the statute. In our brief, we explained how attorneys at Legal Aid have long had to explain to current and prospective clients that federal courts have allowed discrimination in, for example: lateral job transfers; shift scheduling; imposition of discipline; performance evaluations; denial of training; and provision of merit-based performance awards. These types of discrimination impose dignitary, professional, and economic harms. We urged the Supreme Court to consider this context on the road to restoring Title VII to the clear bounds set out in its plain text.

In a unanimous decision authored by Justice Kagan, with Justices Thomas, Alito, and Kavanaugh separately concurring, the Supreme Court vacated the Eight Circuit’s holding and remanded the case for further consideration. The Court held that an employee alleging a discriminatory job transfer must show that the transfer inflicted some harm with respect to an identifiable term or condition of employment,” but, that such harm “need not be significant” to violate Title VII of the Civil Rights Act of 1964.