• The Supreme Court unanimously held that employees can sue their employers under Title VII for discriminatory transfer decisions as long as they show that they suffered some harm related to their job condition. The harm need not be significant, substantial, or serious. 
• The decision resolves a split among federal circuit courts and clarifies the scope of Title VII protections for transfer decisions.
• Employers should review their practices around transfer decisions, implement procedures to document the rationale for transfers, and consider the impact of such transfers on the terms and conditions of employment. 

On April 17, 2024, the Supreme Court issued a unanimous decision in Muldrow v. St. Louis that rejected a heightened injury standard for Title VII claims based on job transfers and held that employees alleging discrimination based on a job transfer need only “show some harm respecting an identifiable term or condition of employment.” Transferees do not have to show that the harm they incurred was significant, serious, substantial, or “any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” 

In Muldrow, a female police sergeant sued the City of St. Louis after she was reassigned from the department’s specialized Intelligence Division to a job in the city’s Fifth District. The employee alleged that the reassignment was based on her sex and had negative consequences on her conditions of employment. Though she was paid the same after reassignment, the employee alleges that she had a less predictable schedule involving weekend shifts; no longer worked with high-ranking officials in the department; and lost access to an unmarked take-home vehicle.

The Supreme Court’s decision resolved a circuit split among the federal circuit courts. For example, while the D.C. Circuit required no showing of harm to make a claim of discriminatory transfer, the Eight Circuit had rejected Muldrow’s claim because she failed to meet that circuit's “materially significant disadvantage” test used to determine when an employment action is harmful enough to sustain a Title VII claim.

In light of the Muldrow decision, employers should be aware that their decision to transfer an employee could lead to liability under federal antidiscrimination law, even in the absence of a change in the employee’s title, compensation, or benefits, if the employee can establish that the employee suffered some harm due to the transfer and that the transfer decision was discriminatory. As such, before transferring an employee, an employer should consider the impact such a transfer would have on the terms and conditions of the employee’s employment. Further, employers should assess their transfer decisions for potential bias and assure that their decisions are supported by legitimate, non-discriminatory reasons that are not pretext for discrimination.

Additionally, while the Court’s decision focuses on transfer decisions, lower courts may apply Muldrow’s rationale to challenge other employment actions, such as scheduling decisions or selections for professional development programs. In particular, opponents of Diversity, Equity & Inclusion (DEI) may attempt to use Muldrow’s reasoning to challenge DEI programs, claiming, for example, that exclusions from programs intended to support underrepresented groups have a negative impact on conditions of employment. DEI proponents have also raised concerns that the Court’s decision will have a chilling effect on DEI initiatives because it raises more questions around the legality of such programs.