The Supreme Court last month made it easier for employees who are involuntarily transferred from one position to another to pursue employment discrimination claims under Title VII of the Civil Rights Act of 1964.
Traditionally, for a transfer to constitute a sufficient change to the terms and conditions of employment to establish a discrimination claim, an employee needs to demonstrate that they were left at a significant disadvantage because of the transfer. In Muldrow v. City of St. Louis, Missouri, the justices unanimously held that the lower court improperly applied a “significance test” to plaintiff’s discrimination claim. In doing so, the Supreme Court clarified that a job transfer may be discriminatory without an employee needing to show she suffered significant, serious or material harm.
Background
Sgt. Jaytonya Muldrow, a detective in the St. Louis Police Department, had worked for years in a plainclothes position before a new commander reassigned her to a uniformed position in which she supervised patrol officers. Muldrow alleged the commander wanted a male officer in the plainclothes position and sometimes called her “Mrs.” instead of “sergeant.” Muldrow retained her rank and pay but claimed the transfer from plainclothes police officer to a uniformed position, because of sex discrimination, resulted in a less prestigious job, which was primarily administrative, required weekend work and came with fewer perks like losing access to a take-home car.
Muldrow sued under Title VII of the Civil Rights Act of 1964, 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 [her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, sex, religion and national origin.” Courts have held that a transfer may implicate the “terms” and “conditions” of one’s employment accompanied by a showing that the transfer resulted in a significant disadvantage. Muldrow claimed less-favorable responsibilities, fewer perks and a schedule change were sufficient to demonstrate a significant disadvantage.
The district court disagreed, granting summary judgment in favor of the City of St. Louis. The 8th U.S. Circuit Court of Appeals affirmed, holding that Muldrow failed to establish that the transfer caused her a “materially significant disadvantage.” Specifically, the transfer “did not result in a diminution to her title, salary, or benefits” and resulted in “only minor changes in working conditions.” Therefore, without the showing of a significant job disadvantage, the transfer alone did not sufficiently change the terms and conditions of her employment.
The Holding
But the Supreme Court, in a unanimous decision, held an employee need not prove that they suffered a “materially significant disadvantage” or any other version of a significance test. Instead, the employee must show the transfer brought about “some harm” with respect to an identifiable term or condition of employment, but not necessarily significant harm to prove their claims. “Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test,” Justice Elena Kagan wrote in the majority opinion.
This is a sea change in Title VII interpretation, and Justice Kagan acknowledged many cases will come out differently under the lower bar the Supreme Court has adopted. She pointed to lower-court cases in which employees failed to meet the significance test, including an engineer whose new job site was a 14-by-22-foot wind tunnel, a shipping worker reassigned to exclusively nighttime work and a school principal who was forced into a new administrative role that was not based in a school. “Their claims were rejected solely because courts rewrote Title VII,” Justice Kagan wrote. The court, she added, made “clear that employers can’t decide the who, what, when, where and why of a job based on race and gender.”
The proper Title VII standard, therefore, is whether the transfer leaves the employee worse off without regard to significance. “If those allegations are proved,” Justice Kagan wrote, “she was left worse off several times over.” The decision revives Muldrow’s lawsuit, which now returns to lower courts.
Concurring Opinions
While the outcome was unanimous, Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh each wrote separate opinions noting some level of disagreement with the majority’s rationale, primarily centered around the interpretation of “some harm.” Justice Alito stated plainly, “I have no idea what [‘some harm’] means.” Justice Thomas noted that an employee asserting a Title VII claim must show more than trifling harm and “there is little practical difference between that principle and the Court's [‘some harm’] holding.”
Justice Kavanaugh reasoned that a transfer alone without a showing of harm is enough to state a Title VII claim. He acknowledged, however, “the Court’s new some-harm requirement appears to be a relatively low bar . . . whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”
Employer Takeaways
In light of Muldrow, employers should be mindful that any involuntary transfer is likely to violate Title VII if the employee can show that it was based upon age, sex, race, religion or national origin. Any reduction in compensation, title, status, promotional opportunities, level of responsibility, among other changes, may qualify as “some harm,” as the court has opened the door for outcome-determinative decisions.
Miles and Stockbridge’s labor and employment lawyers will be monitoring developments related to the court’s ruling and regularly help clients with Title VII compliance and matters.
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