August 15, 2017


WASHINGTON – In an unusual reversal of its own earlier opinion, the U.S. Court of Appeals for the D.C. Circuit has ruled in response to a petition by the ACLU of the District of Columbia that the discriminatory denial of a request for a transfer can be a violation of federal employment discrimination law.

Samuel Ortiz-Diaz, a former senior special agent at the U.S. Department of Housing and Urban Development Office of Inspector General, was denied a transfer to a different office by a supervisor who had exhibited a hostile attitude toward other Hispanic employees and had approved transfers for Caucasian employees who were similarly situated to Ortiz-Diaz. “These events have affected my life completely for the seven years I’ve been dealing with this,” said Ortiz-Diaz. “I could see discrimination happening to me and to others. I’m very grateful the judges looked at the case again. The main thing for me is making sure that the truth comes out.”

Ortiz-Diaz sued the agency under Title VII, the federal anti-discrimination law, for employment discrimination on the basis of race and/or national origin. In December 2014, the U.S. District Court for the District of Columbia ruled for the government, and in August 2016, a panel of the U.S. Court of Appeals for the D.C. Circuit affirmed, holding that a “lateral transfer” that does not involve a loss of pay, benefits, or job responsibilities, is not an “adverse employment action” and therefore entirely outside the protection of Title VII.

The ACLU of the District of Columbia joined the case in September 2016 to file a petition asking the full Court of Appeals to consider the case. The ACLU-DC argued the panel’s decision incorrectly narrowed 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 transfers, work assignments, work hours, and more.

Following the ACLU-DC’s petition, the original three-judge panel decided to vacate its original opinion and substitute a new opinion unanimously reversing the judgment against Ortiz-Diaz and holding that the Title VII claim must be reinstated and proceed to trial. Friday’s ruling explained: “Ortiz-Diaz’s allegation of harm, that he was denied a transfer away from a racially and ethnically biased supervisor to a non-biased supervisor more likely to advance his career, falls within Title VII’s heartland.”

“The D.C. Circuit has rightly backed away from a dangerously narrow reading of Title VII that would have left a gaping hole in its protections,” said Scott Michelman, senior staff attorney at the ACLU-DC. “A person’s place of work, no less than his salary and benefits, is a crucial term of his employment that has a significant effect on what the job is like day to day. Decisions about transfer, like decisions about hiring, firing, and pay, should be unmarred by odious discrimination on the basis of race, national origin, or other prohibited grounds.”

Eden Brown Gaines of Brown Gaines, LLC, who filed the case on behalf of Ortiz-Diaz, added: “Title VII plays a critical role in ensuring equal opportunity in our society. Mr. Ortiz-Diaz was entitled to employment decisions free from bias against him because of his Puerto Rican heritage. We look forward to proving at trial that the government violated Mr. Ortiz-Diaz’s rights in denying his transfer request.”

The decision, Ortiz-Diaz v. U.S. Department of Housing & Urban Development, along with the ACLU-DC’s successful petition for rehearing, is available here: