In April, the U.S. Supreme Court unanimously held in Muldrow v. City of St. Louis, that to sustain a prima facie case of employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), plaintiffs do not have to show that a discriminatory transfer to another position caused “material” or “significant” harm to the plaintiff; rather plaintiffs only have to show that “some” harm occurred because of the job transfer. In its opinion, the Court did not explicitly articulate how “some” harm is defined. Regardless, the reduced “harm” standard will invariably increase the number of claims that survive early dismissal at the trial court level. Indeed, Justice Kavanaugh opined that a plaintiff “should easily be able to show some additional harm – 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.”
Pre-Muldrow, federal circuits disagreed on how much harm a plaintiff must show to have suffered an actionable “adverse employment action” under Title VII. Some circuits previously held that no showing of harm necessary beyond the discriminatory act itself was required, while other circuits generally applied a heightened standard of harm for claims to be actionable under Title VII.
Post-Muldrow, employers will be forced to grapple with a lowered, undefined standard of “harm,” which will likely require additional litigation to sort out. Further, while the Court’s holding was focused on job transfers, the decision might encourage employees to challenge other types of employment actions, (i.e., scheduling changes, work assignments, training and mentorship, or other opportunities) in an attempt to lower the legal standards for actionable discrimination claims altogether.
However, it is not time to panic (yet). Employers still have the well-known defense in their arsenal that the job transfer was made for legitimate, non-discriminatory reasons. As such, thorough documentation for the reasons supporting an employee’s job transfer have just become even more critical to shield employers from increased discrimination claims under Title VII.
