SCOTUS Lowers the Bar for Discriminatory Job Transfers Under Title VII

On April 17, 2024, the U.S. Supreme Court held in Muldrow v. City of St. Louis, that discriminatory job transfers under Title VII require a showing of “harm” relating to an identifiable term or condition of employment, but that harm does not need to be “significant.” The Court’s holding resolves a circuit split, lowering the standard of harm needed to show job transfers are discriminatory under Title VII in certain jurisdictions. Although the full impact of the Court’s decision remains to be seen, the lower standard may open the door for other employment actions beyond job transfers that would have previously failed for not being “significant” or “material.” Employers should consider reviewing their practices and policies for vulnerabilities in light of the Court’s decision.

Background

Jatonya Muldrow filed a Title VII gender discrimination claim against her employer, the City of St. Louis, based on her being involuntarily transferred from a prestigious police intelligence unit by a new supervisor who allegedly wanted a male officer in the position. Although she continued to have the same pay and job title, she was moved to a less prestigious, uniformed job with less desirable responsibilities, schedules, and perks.

Relying on Eighth Circuit precedent, the federal district court granted summary judgment in favor of the City of St. Louis, finding Muldrow had not proven her transfer amounted to a “significant” change in working conditions producing “material employment disadvantage.” On appeal, the Eighth Circuit Court of Appeals affirmed the decision.

The Court grant certiorari of Muldrow’s claims to resolve a “Circuit split over whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm—be it dubbed significant, serious, or something similar.” Before the Court’s decision, several federal circuits, including the Second, Fourth, Seventh, Eighth, Tenth, and Eleventh Circuits, generally applied a heightened standard of harm for job transfers to be actionable under Title VII.

The Court’s Decision

The Court unanimously held that a plaintiff claiming a job transfer is discriminatory under Title VII must show that the transfer caused “some harm with respect to an identifiable term or condition of employment,” but the plaintiff does not have to show the “harm incurred was ‘significant’ or otherwise exceeded some heightened bar.”

Writing for the majority, Justice Kagan reasoned that the statutory text of Title VII did not require a plaintiff to show the harm related to a job transfer was “significant,” “serious, or substantial, or any similar adjective suggesting the disadvantage to the employee must exceed a heightened bar.” Discrimination under Title VII means to treat the plaintiff “worse” based on sex or another protected trait that relates to some identifiable term and condition of employment. But a plaintiff does not have to show a job transfer caused “significant disadvantages” or “not-so-significant ones.”

Here, the Court found that Muldrow’s allegations showed her job transfer caused some harm relating to an identifiable term and condition of employment. The Court found that Muldrow’s allegations “meet that test with room to spare” because, among other things, she alleged: (1) the transfer caused her to be moved from a plainclothes job in a prestigious specialized division to a uniformed job primarily performing administrative work; (2) her new schedule was less regular and required weekend work; and (3) she lost her ability to use a car that she could take home. 

Concurrences

Justices Alito, Thomas, and Kavanaugh authored concurring opinions. Justice Alito criticized the Court majority’s opinion as “unhelpful” because the some “harm” requirement created ambiguities that essentially left lower court judges to “continue to do pretty much just what they have done for years.” Justice Kavanaugh’s concurrence urged a more pro-employee standard that would have removed any requirement of showing a job transfer caused harm. Instead, he agreed with the D.C. Circuit’s approach to only require a plaintiff to show a job transfer was made on the basis of race or another protected trait to state a Title VII claim.

Practical Implications

Although the full impact of the Court’s decision remains to be seen, employers should be mindful of at least a few potential implications coming from Muldrow.

• The Court’s decisions will lower the standard under Title VII for discriminatory job transfers in certain jurisdictions. No longer will plaintiffs have to show a job transfer caused significant, material, or any other heightened standard of harm. The Court, however, stopped short of adopting the D.C. Circuit’s approach that plaintiffs do not have to show any harm. So, plaintiffs will still have to show they suffered some level of harm, but the Court emphasized that is not a “high bar.”
• The Court’s holding was narrowly focused on job transfers. The Muldrow decision, however, may open the door for plaintiffs to challenge other employment actions that do not rise to the level of material adverse changes in employment terms and conditions, such as changes in pay, job title, hiring, promotions, or terminations. Under the Court’s new standard, more challenges may be brought for other job actions, such as work or office assignments, schedule changes, job perks, and training. How lower federal courts will interpret the Muldrow standard of “harm” for these types of job actions will have to play out in the coming years.

• It is too early to tell whether the Court’s decision will result in a flood of litigation. The Court seemingly dismissed those concerns, noting that courts have multiple ways to dispose of meritless Title VII claims because plaintiffs must still show they suffered some harm (even if not substantial), that injury affected a term or condition of employment, and the action was discriminatory “because of” race or another protected trait.

• The Court clarified that its decision did not change the “materially adverse” standard that applies to Title VII retaliation claims, and the Court did not address the standards for hostile work environment or sexual harassment claims under Title VII.

• Some have feared that the Court’s decision may provide an opening to challenge corporate diversity, equity, and inclusion (DEI) programs. It is important to note that the Court did not address DEI programs in this decision. Although Muldrow eases the burden for showing discriminatory job actions under Title VII, it also confirms that Title VII still requires plaintiffs to show the challenged practice caused some “harm,” even if the harm does not have to be “significant.” The requirement to show some “harm” that makes a plaintiff “worse” off will likely make it more difficult to challenge many DEI programs. Indeed, the Court did not adopt the D.C. Circuit’s approach of only requiring a showing of differential treatment based on race or other protected characteristics, which may have made DEI programs more vulnerable to attack. Nevertheless, the Court’s more lenient standard may be seen by activists or employees as a lane for challenging corporate DEI programs.

In light of the Court’s ruling, employers should consider taking the following actions:

• Review policies and practices to ensure they do not unnecessarily increase risk of potential discrimination claims. For example, review processes for job transfers, work assignments, scheduling, mentoring/training, and other actions that fall short of “material” job actions (e.g., terminations, demotions, etc.) for potential vulnerabilities.
• Ensure legitimate, non-discriminatory business reasons are documented for internal transfers and other employment actions since they will help defend against discrimination claims.
• Audit DEI programs through the lens of Muldrow to see if they may be more vulnerable to challenge.