Alicia Kirton is a Black woman who was employed by the Federal Emergency Management Agency (“FEMA”) as a budget analyst. Her job involved coordinating the proper allocation of funding for programs within FEMA. In December 2015, Ms. Kirton requested full-time telework status, a request her supervisor denied, even though her work could be done remotely and a white man with the same job had been granted telework status for years.

Ms. Kirton sued for discrimination, but the trial court ruled in favor of the government on the broad basis that, without a showing that the denial of telework “affected her salary, job responsibilities, or future employment opportunities,” Ms. Kirton had not shown an “adverse action” consisting of “objectively tangible harm” and therefore was not protected by federal law against discrimination with regard to telework status. The court thus did not permit Ms. Kirton to present to a jury her evidence that her request was denied on the basis of race.

In cooperation with Ms. Kirton’s existing counsel, we took on the case for the purpose of appealing it and seeking a ruling that federal employment discrimination law covers discrimination with respect to all “personnel actions” (or “terms” and “conditions” of employment), not just discrimination that causes certain harms that courts have found to be “tangible,” like loss of pay or benefits. The “tangible” limitation wrongly narrows federal protections against employment discrimination by permitting employers — including the federal government — to discriminate openly on the basis of race, national origin, and other prohibited grounds in decisions about telework, transfers, work assignments, work hours, and more. No less than other employment actions, decisions about working conditions should be made free from discrimination.

After we filed our appeal in May 2021, the government asked the court to summarily rule against Ms. Kirton based on existing precedent. In September 2021, the court denied the government’s motion.

In a separate case decided in June 2022, Chambers v. District of Columbia, the appeals court overruled its requirement that a plaintiff under Title VII show “objectively tangible harm,” and held that under the correct standard, discrimination with respect to a job transfer decision always qualifies as a violation of Title VII. The court relied prominently on a decision in a prior ACLU-DC case, Ortiz-Diaz v. U.S. Dep’t of Housing & Urban Development. In August 2022, the court sent Ms. Kirton’s case back to the trial court to reconsider in light of the new ruling.

Pro Bono Law Firm(s)

Morris E. Fischer LLC

Date filed

May 12, 2021