TAKEAWAYS
- Muldrow v. City of St. Louis holds that an employee challenging an involuntary lateral job transfer under Title VII need only show that the transfer resulted in “some harm” or “some ‘disadvantageous’ change” with respect to a term or condition of employment, but the harm or disadvantageous change need not be “significant.”
- This holding resolves a split among U.S. Circuit Courts of Appeal over whether an employee challenging a lateral transfer under Title VII must meet a heightened standard of harm in order to establish they were subject to discrimination.
- The Supreme Court’s establishment of a lower standard in Circuit Courts previously applying a “significance” standard for demonstrating harm—including the First, Second, Fourth, Seventh, Eighth, Tenth and Eleventh Circuits—is likely to result in a notable increase of Title VII actions, including reverse discrimination claims challenging Diversity, Equity, and Inclusion programs in the workplace.
In Muldrow v. City of St. Louis, No. 22-193, 2024 WL 1642826 (U.S. Apr. 17, 2024), the U.S. Supreme Court ruled that an employee alleging that an involuntary lateral job transfer constituted workplace discrimination in violation of Title VII of the Civil Rights Act of 1964 need only show that the transfer resulted in “some harm,” rejecting as “extra-textual” any heightened threshold of harm required by certain lower courts. As Justice Elena Kagan held in the majority opinion, a Title VII plaintiff “does not have to show … that the harm incurred was significant. Or serious, or substantial, or any similar adjective.” This is because “Title VII’s text nowhere establishes that high bar.” Justice Kagan’s opinion was joined by Chief Justice Roberts and Justices Sotomayor, Gorsuch, Barrett and Jackson. Justices Thomas, Alito and Kavanaugh each filed concurring opinions.
Background
The plaintiff, a female sergeant with the St. Louis Police Department, had been serving as a plainclothes officer in the specialized Intelligence Division for approximately nine years when she was replaced by a male officer and transferred to a uniformed position in the Department’s Fifth District. The Intelligence Division commander testified that the male officer was a better fit than the plaintiff for the “very dangerous” work of the Intelligence Division. Although the plaintiff retained the same rank and salary, she alleged that the new position was less prestigious and more of an “‘administrative’ uniformed role,” resulting in fewer opportunities to work on important investigations and network with commanding officers. The plaintiff also alleged the loss of certain material benefits, such as the transition from a standard 9 am to 5 pm Monday to Friday schedule to a rotating schedule that resulted in regular weekend shifts and the loss of use of an unmarked take-home car.
The plaintiff alleged that the lateral job transfer was due to her sex, in violation 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 race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Specifically, she alleged that by moving her to a new division her employer discriminated against her based on her sex with respect to the “terms” and “conditions” of her employment.
The U.S. District Court for the Eastern District of Missouri granted summary judgment in favor of the defendant, the City of St. Louis and the U.S. Court of Appeals for the Eighth Circuit, following Eighth Circuit precedent, affirmed that decision, holding that the plaintiff could not show the lateral transfer caused a “materially significant disadvantage” because her title and pay had stayed the same and the transfer caused “only minor changes in working conditions.”
Holding
The Supreme Court vacated the lower court’s summary judgment decision and remanded the case for further proceedings consistent with its opinion. Critically, the decision rejects the position adopted by the Eighth Circuit and a majority of the other U.S. Circuit Courts of Appeal that a transferred employee must show that the harm incurred by a transfer is “significant” or “material.” Rather, the Court held that a plaintiff “need show only some injury” with respect to the “terms or conditions” of their employment, noting that “[t]he transfer must have left [a plaintiff] worse off, but need not have left [them] significantly so.” As Justice Kagan explained, “[t]o demand ‘significance’ is to add words … to the statute Congress enacted.”
Applying this standard, the Supreme Court held that the plaintiff’s allegations of lower prestige and changes in her work schedule and work vehicle access, if proven, would meet the test “with room to spare,” even if her rank and pay remained the same.
Justice Thomas concurred in the ruling but took issue with the plaintiff’s lack of evidentiary support for her allegations of harm occasioned by the lateral transfer, and also questioned whether the majority’s “some harm” test was substantively different than the test applied by the Eighth Circuit. Justice Alito cast doubt on the functionality of the “some harm” test in practice and whether it amounted to a doctrine change at all, but concurred with the majority opinion that plaintiff’s allegations of harm met the standard required to state a Title VII claim, whatever that standard may be. Justice Kavanaugh disagreed with the use of any test to measure harm, but otherwise concurred with the outcome.
Implications
The Muldrow decision marks a notable transformation in workplace discrimination claims brought under Title VII. Indeed, the Supreme Court acknowledged the implications of the decision, stating in a footnote: “[T]his decision changes the legal standard used in any circuit that has previously required ‘significant,’ ‘material,’ or ‘serious’ injury. It lowers the bar Title VII plaintiffs must meet.” (emphasis added). The Supreme Court went so far as to predict (in that same footnote) that “claims that failed under a significance standard should now succeed.” While some courts may attempt to limit the Muldrow holding to the involuntary lateral transferee context, it is much more likely that the holding is applied broadly to any discriminatory actions impacting the “terms” or “conditions” of an individual’s employment.
One potential ramification of this decision, raised by the defendant on appeal, is that without a significant-injury requirement, the Title VII “floodgates” might open. While the Supreme Court dismissed this concern, it did note that such an outcome would simply be the “result of the statute Congress drafted” and it was not the Court’s place to “‘add words to a law’ to achieve what some employers might think ‘a desirable result.’” Accordingly, part of that flood might come in the form of challenges to Diversity, Equity, and Inclusion (DEI) programs by employees alleging that such participation alters the “terms and conditions” of their employment under Title VII. However, such concerns may be mitigated by the fact that plaintiffs are nonetheless required to demonstrate that they satisfy all the elements of a claim of discrimination, including their belonging to a protected class and disparate treatment. As the Court noted, “courts retain multiple ways to dispose of meritless Title VII claims.”
In sum, Title VII’s anti-discrimination provision does not “distinguish[] between significant and less significant harms” so long as there is “some harm.” Any involuntary change to the terms or conditions of an individual’s employment—a lateral transfer, a schedule change or a relocation, for example—that is disadvantageous in some way may be actionable. Given the lowered threshold for asserting workplace discrimination claims, employers face increased legal exposure to Title VII claims. Employers should continue to enforce, and ensure strict compliance with, anti-discrimination policies in the workplace.
