KEY TAKEAWAYS

• Rejecting the standard applied by seven circuit courts, the U.S. Supreme Court held that job transferees alleging Title VII discrimination do not have to show “significant harm,” but instead need only show “some harm” from the transfer.
• Any forced transfer leaving an employee “worse off” is likely to satisfy the new “some harm” standard, even where there has been no change in salary or benefits.
• The holding may expand the number of colorable Title VII claims based on a mandatory job transfer.

SCOTUS announces ‘some harm’ standard for Title VII claims based on a mandatory job transfer.

The Supreme Court in Muldrow v. City of St. Louis, Missouri, et al., 601 U.S. ____ (April 17, 2024), held that where an employer transfers an employee to another position based on a protected class, to prove discrimination under Title VII, the employee need only show “some harm” arising from the transfer, which harm need not be “significant.”

As background, the city of St. Louis transferred Sergeant Jatonya Claborn Muldrow from the Police Department’s specialized Intelligence Division to a uniformed position elsewhere in the department because she is a woman.

Muldrow brought suit for Title VII discrimination, alleging that although her rank and pay remained the same following the transfer, she was harmed in the following ways:

(1) she was moved from a plainclothes job in a prestigious specialized division where she had substantial responsibility over priority investigations and frequent opportunities to work with police commanders;

(2) she was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work;

(3) her schedule became less regular, often requiring her to work weekends; and

(4) she lost her take-home car.

Justice Kagan, writing for the majority of the Court, rejected the lower courts’ finding that Muldrow did not show sufficient harm to state a claim under Title VII. Based on the statute’s text, which does not contain a significance qualification, the Court held that to prove Title VII discrimination, a transferee “must show some harm respecting an identifiable term or condition of employment,” but the “transferee does not have to show ... that the harm incurred was ‘significant’ or otherwise exceeded some heightened bar.”

The majority rejected the “heightened threshold” of harm that had been applied by the 1st, 2nd, 4th, 7th, 8th, 10th and 11th Circuits – “be it dubbed significant, serious, or something similar.” The Court favored the D.C. Circuit’s requirement of only “objectively tangible harm.”

The Court added that if her claim is properly proven, Muldrow was left worse off “several times over” and meets the Title VII test “with room to spare.”

The Court rejected the city’s argument for extension of the significant harm standard used in Title VII retaliation cases to Title VII discrimination cases. This is because the intent of granting a retaliation claim under Title VII is to prevent employers from dissuading employees from making Title VII claims. De minimis changes to the terms or conditions of employment, the Court believes, are not likely to have the chilling effect that Title VII retaliation claims are designed to avoid. Conversely, the antidiscrimination provision of Title VII encourages a workplace where individuals are not discriminated against because of traits like race and sex, without distinguishing between significant and less significant harms.

The Court also rejected fears of opening the proverbial floodgates to Title VII claimants because there still has to be a showing of “some injury.” And regardless, according to the Court, closing the “floodgates” may be a reason for Congress to act, but it does not justify a decision outside the confines of Title VII’s text.

Concurring justices question the ‘some harm’ standard.

In a concurring opinion, Justice Alito classified the majority’s opinion as “unhelpful.” He candidly wrote, “I have no idea what [the majority’s ‘some harm’ standard] means, and I can just imagine how this guidance will be greeted by lower court judges.” Justice Alito viewed the standard as essentially nothing more than semantics and felt that “[t]he predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years.” Justice Thomas, in a separate concurring opinion, agreed with Justice Alito that the lower courts will apply the same principles articulated by the majority, only using different words.

But Justice Kavanaugh wished the majority went further, writing that “a transfer on the basis of race, color, religion, sex, or national origin is actionable under Title VII” without any showing of “some harm.” He explained that the discrimination itself is the harm; however, he predicted that any discriminatory transfer should meet the majority’s low “some harm” bar, whether the harm is “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.”

Employers should carefully scrutinize all mandatory job transfers.

In the end, employers should heed the majority’s caution that “a transfer is not usually forced when it leaves the employee better off.” Therefore, employers should work with counsel to carefully scrutinize any mandatory job transfers and the reasons for selecting employees for such transfers. If the reason for selection is based on a protected class, the transferee will be able to state a claim for Title VII discrimination with only a showing of “some harm,” which courts may interpret very broadly based on the Muldrow decision.

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