An important race discrimination case, Peterson v. Linear Controls, No. 18-1401, is sleeping on the U.S. Supreme Court's cert docket. The high court should take the case and strike a blow for workplace equality, correcting a longstanding injustice permeating the lower courts.

For decades, Title VII of the 1964 Civil Rights Act has prohibited employers from discriminating against their employees on the basis of race, color, religion, sex or national origin. 

By now, Title VII should have banished the most brazen workplace indignities of Jim Crow. So, if I told you that an employer segregated its workforce and assigned its white workers tasks in air-conditioned comfort while requiring its black employees to work outside in oppressive heat solely on the basis of their race—the exact policy alleged in Peterson—you'd tell me that any federal judge would invalidate that policy before the plaintiff's motion got halfway to the courthouse.

But you'd be dead wrong.

Turns out that in parts of this country that policy and others like it are considered perfectly lawful.

How can that be? Title VII's core substantive provision—Section 703(a)— makes it unlawful for an employer "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," period. 

Despite this seemingly all-encompassing ban, the U.S. Court of Appeals for the Fifth Circuit recognizes as prohibited only what it calls "ultimate employment decisions": firing, demoting and the like. So, because an employer might harm and demean its African American employees without discriminating in compensation (as alleged in Peterson), their Title VII rights supposedly have not been violated.

The Fifth Circuit is not alone. Some other circuits demand immediate pocketbook harm, and so denying an employee training on account of race or sex—which obviously could undermine a worker's future advancement—has been held insufficient to make out a discrimination claim. In some courts, denying equal access to bathrooms or other common necessities on the basis of race or sex would also be lawful.

To be clear: Peterson has nothing to do with difficult problems that arise in discrimination cases: Did the employer intend to discriminate? Can discriminatory conduct of co-workers be attributed to the employer?

No, the issue here is simple.

In Peterson, the Fifth Circuit accepted alleged facts as true—that is, that the employer intentionally segregated its workforce, subjecting only black workers to oppressive conditions—and then held that Title VII has nothing to say about it. An employer that flat-out told its employees "we train only our white workers" would not have made an "ultimate employment decision," and so would have no fear of Title VII liability.  

How in the world did the courts get to this place?

In Title VII's early days, some courts described the statute's ban on discrimination in "terms, conditions, or privileges of employment" as prohibiting "adverse employment actions." These courts were simply employing a shorthand for the expansive range of employment practices forbidden by Congress. 

But later, the term "adverse employment action" took on a life of its own. Lower courts gave that term various meanings limiting the statute's broad discrimination prohibition. Some of this extratextual judicial adventurism likely was inadvertent and some was a misguided effort to narrow Congress' ban. 

The lower courts' adverse-employment-action doctrine is anathema to Title VII. And it can be driven out of the jurisprudence with support that will please textualists and purposivists alike.

Section 703(a)'s operative verb is "discriminate," which dictionaries tell us means "to distinguish among or between" or "treat a person or group in an unjust or prejudicial manner." Obviously, an employer discriminates when it segregates by race or provides training to men but not women.

And you hardly need a dictionary to know that working outside in suffocating heat is a "condition" of employment or that training is a "privilege" that an employer might or might not offer. But in case you do: Black's Law Dictionary says "terms" are "conditions under which something may be done, settled, agreed, or granted," while the Oxford English Dictionary defines "privileges" to mean "rights [or] advantages granted to or enjoyed by an individual beyond the usual rights or advantages of others." In other words, "terms, conditions, or privileges" is a catchall for all incidents of an employment relationship.

And that's how the Supreme Court has seen it. The court has said "Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin." It explained in an important sex-discrimination decision, Hishon v. King & Spalding, that "terms, conditions, and privileges" include anything that is an "incident of employment" or "forms an aspect of the relationship between the employer and employees."

Any statute that authorizes a federal court suit requires that the plaintiff suffer some harm. The Constitution's case-or-controversy requirement demands as much. That's why Section 703(a) says an employer may not "discriminate against any individual."

But that language does not demand immediate economic harm or authorize courts to manufacture an adverse-employment-action doctrine from the ether. And it certainly does not effectively authorize blatant discrimination of the kind alleged in Peterson. 

In 1964, Congress enacted a ban on all discriminatory employment practices. A decade later, the Supreme Court observed that Title VII's primary purpose was to ensure "equality of employment opportunities and to eliminate those discriminatory practices and devices which have disadvantage[d] minority citizens."

Yet in 2019, a federal court of appeals, following a judicially concocted doctrine persisting in the lower court for years, has held that Title VII does not prohibit intentional racial segregation in working conditions that severely disadvantage black employees.

That cannot be right. The Supreme Court should say so in Peterson.

Brian Wolfman is an associate professor at Georgetown Law, where he directs the Appellate Courts Immersion Clinic. The clinic filed an amicus brief urging the Supreme Court to review the Peterson case.