KEY TAKEAWAYS:

• In Muldrow v. City of St. Louis, the U.S. Supreme Court purports to clarify the standard of harm employees must show when alleging an involuntary transfer was discriminatory

• Employees need to show “some harm” stemming from an involuntary transfer

• Employers should be mindful of involuntary transfers that cause some disadvantageous change in the terms or conditions of an employee’s employment

On April 17, the U.S. Supreme Court rendered an opinion in Muldrow v. City of St. Louis resolving a circuit split over what standard an employee challenging a transfer under the anti-discrimination provision of Title VII must meet. In Muldrow, the Court held Title VII does not impose a heightened standard on employees challenging a transfer. Rather, employees need to show “some harm” to an identifiable term or condition of employment, and need not show the harm was significant.

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers “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.” Muldrow involved a female sergeant in the St. Louis Police Department working as a plainclothes officer in the department’s Intelligence Division. While in the Intelligence Division, Muldrow worked Monday through Friday, and was deputized as a Task Force Officer with the Federal Bureau of Investigation.  This granted her FBI credentials, and an unmarked take-home vehicle.

When a new commander took over the Intelligence Division, Muldrow was reassigned to a uniformed position, and a male replaced her in the Intelligence Division. Muldrow’s rank and pay remained the same, but her job responsibilities, perks, and schedule changed. Muldrow now supervised the day-to-day activities of neighborhood patrol officers, reviewed and approved arrest reports, and did some patrol work herself. Upon the transfer, Muldrow lost her FBI credentials and take-home car, and started working a rotating schedule, which involved some weekend shifts.

Muldrow challenged the transfer under Title VII claiming that her transfer from the Intelligence Division was because of her sex, and claimed the transfer put Muldrow in a less prestigious role with fewer opportunities to work on important investigations and network with commanding officers, in addition to losing her take-home car, and Monday-through-Friday schedule.

The Supreme Court rejected lower court holdings that Muldrow needed to show a significant harm resulting from the transfer, and ultimately held that an employee must simply show “some harm” with respect to an identifiable term or condition of employment when challenging a transfer. The level of harm need not be significant, serious, or substantial.

While the decision was 9-0, three justices filed concurrences. Justice Thomas indicated that he disagreed with the court’s characterization of the Eighth Circuit’s decision as requiring a “heightened-harm requirement” and noted that a plaintiff must have suffered an actual disadvantage as compared to minor changes (i.e. more than a trifling harm). Justice Alito criticized the court’s opinion and referred to it has “unhelpful” and that he has “no idea what [it] means.” Finally, Justice Kavanaugh stated the analysis should be quite straightforward, and that “the only question then is whether the relevant employment action changes the compensation, terms, conditions, or privileges of employment.”

In light of Muldrow, employers are advised to be mindful of the effects an involuntary job transfer has on the terms and conditions of the transferring employee, and to seek employment counsel prior to making those decisions.