When transferring an employee or making changes to their job duties, employers now face an increased risk of claims under Title VII. On April 17, the US Supreme Court unanimously held that plaintiffs alleging discrimination in violation of Title VII based on a forced job transfer need not prove they suffered a resulting “significant” harm or “material,” “serious,” or other heightened level of disadvantage to prevail on their claims.
Instead, the Court held in Muldrow v. City of St. Louis that a plaintiff need only show that the transfer “brought about some harm with respect to an identifiable term or condition of employment.”
Previously, there was a split among federal circuit courts of appeal, with several circuits, including the 8th Circuit, requiring Title VII plaintiffs to prove the transfer caused a “material” change to their employment. The Court’s decision resolves that split and sets a lower bar for employees claiming discrimination based on a change to the terms and conditions of their jobs.
Facts and Posture
The plaintiff, Police Sergeant Jatonya Clayborn Muldrow, worked as a plainclothes officer in the St. Louis Police Department’s Intelligence Division from 2008 through 2017. In 2017, the new Intelligence Division commander transferred Muldrow out of the division and into a uniformed job in another unit. Sergeant Muldrow claimed her transfer was motived by a gender-based animus; the commander wished to replace her with a male police officer. In the new unit, Sergeant Muldrow’s rank and pay remained the same, but her responsibilities, perks, and schedule were changed.
She sued, alleging that the City of St. Louis unlawfully discriminated against her on the basis of sex when it transferred her to the new unit. Sergeant Muldrow claimed the transfer took her from a position with “straight days, weekends off with a take-home car and more visibility and responsibility within the Department” to one with “a rotating schedule with few weekends off, assigned to . . . uniformed patrol” and ‘“responsibilities . . . limited to that of administrative work’ and ‘supervising officers on patrol.’”
The district court for the Eastern District of Missouri granted summary judgment for the City of St. Louis, finding that Sergeant Muldrow failed to show that the transfer caused a “significant” change in working conditions producing a “material employment disadvantage.” The 8th Circuit affirmed on the same basis, saying Sergeant Muldrow failed to prove that the transfer resulted “in a diminution to her title, salary, or benefits.”
Supreme Court Decision
The Court’s decision, authored by Justice Elena Kagan, was based largely on a plain reading of Title VII, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” This language alone, the Court held, sets the standard for a Title VII discrimination claim, and rejected the notion of a “heightened bar” for harm on a straightforward basis—‘“[d]iscriminate against’ means treat worse, here based on sex. Neither that phrase nor any other establishes an elevated threshold of harm. To demand ‘significance’ is to add words to the statute Congress enacted.”
Instead, a plaintiff must show “only some injury respecting her employment terms or conditions.” In remanding the case back to the circuit court, the Court predicts that if Sergeant Muldrow’s allegations were adequately supported and preserved, they would meet the “some harm” standard “with room to spare.”
The Court was careful to distinguish the discrimination claims at issue in Muldrow from Title VII retaliation claims. The Court previously held in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006) that an employee making a claim of unlawful retaliation must prove a “materially adverse” action causing “significant” harm. The Muldrow Court clarified that decision was based on the “peculiar” context of retaliation claims, in which the employer’s actions are unlawful if they dissuade a reasonable worker from making or supporting a discrimination charge. The court held “no such . . . reasoning is applicable” to Title VII’s proscription on discrimination.
Takeaways
The Court’s decision immediately affects cases in courts which previously applied a heightened standard for Title VII transfer cases (including those in the 1st, 2nd, 4th, 7th, 8th, 10th, and 11th Circuits). Employers can expect that a “significance” threshold will no longer pass muster for any Title VII discrimination claim based on changes to an employee’s terms or conditions of employment. Instead, courts are likely to apply the “some harm” standard to all such claims.
Despite its adoption of the lowered standard for Title VII claims, the members of the Court argued the decision will not cause a sea change for discrimination claims. The Kagan opinion expressed doubt that the decision would lead the “floodgates to open” on Title VII transfer claims, highlighting that an employee must still prove some injury to the terms and conditions of their employment and that the transfer was made for discriminatory reasons. The opinion also encouraged courts to “consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination.” In a concurring opinion, Justice Samuel Alito predicted the same, saying “[t]he predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years.”
Employers may wish to meet with experienced employment counsel regarding the impact of this decision to its current practices, including diversity, equity, and inclusion (DEI) initiatives. In practice, when transferring or making changes to a worker’s job duties, employers must keep in mind that simply because the compensation and hours remain the same, other changes could be considered adverse. For example, plaintiffs alleging “reverse discrimination” may use the lowered “some harm” standard to claim discrimination based on a change in duties, lack of access to mentorship, leadership opportunities, or other benefits provided through DEI and other initiatives.
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