Kavanaugh, Lateral Transfers, and Disparate Treatment

To win a disparate treatment claim under Title VII, the employee must show that (s)he suffered an "adverse employment action." In Ortiz-Diaz v. HUD, the D.C. Circuit held that the employer's denial of a lateral transfer did not meet this standard (citing past precedent requiring "diminution in pay or benefits" or other "materially adverse consequences").

SCOTUS nominee, Judge Kavanaugh, filed a concurring opinion. He agreed that under existing D.C. Circuit precedent, denial of a lateral transfer was generally not an adverse employment action, but he wrote a very short opinion (this is it, in its entirety) to express skepticism about that precedent:

I join the majority opinion because it faithfully follows our precedents. Our cases hold that lateral transfers to different positions or posts with the same pay and benefits are ordinarily not changes in the “terms, conditions, or privileges” of employment. I write this concurrence simply to note my skepticism about those cases. In my view, a forced lateral transfer—or the denial of a requested lateral transfer—on the basis of race is actionable under Title VII. Based on our precedents, however, I join the majority opinion.