In a recent decision, the United States Supreme Court in Muldrow v. City of St. Louis, Missouri settled a conflict between the federal courts about the level of harm an employee must show when claiming an internal job transfer discriminatory. Some courts had required a showing that the transfer caused “material” or “significant” harm. In a unanimous decision, the Supreme Court rejected such a heighted threshold of injury and ruled that an employee must only show some harm from a forced job transfer to maintain a Title VII discrimination lawsuit. The decision will have a substantial impact on employee challenges to internal job transfers based on the employee’s protected status.
Under federal law, Title VII of the Civil Rights Act of 1964 makes it unlawful for covered employers “to discriminate against any individual with respect to” the individual’s “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” As the Supreme Court has earlier explained, “discrimination against” means showing “differences in treatment that injure” an employee or those practices that treat an individual “worse” with respect to terms and conditions of employment because of a protected trait.
Case Background
For nine years, Sergeant Jatonya Muldrow had worked as a plainclothes police officer in the specialized Intelligence Division of the St. Louis Police Department. Receiving positive performance reviews in that role, she investigated public corruption and human trafficking cases and led both the Gang Unit and Gun Crimes Unit. The FBI had also deputized her as a Task Force Officer providing her with “FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis.”
In 2017, Muldrow’s new commander transferred Muldrow out of the Intelligence Division against her wishes. Muldrow’s rank and pay stayed the same but her job duties and hours changed. She now served in a uniformed job where she supervised neighborhood patrol officers in their day-to-day activities and performed other administrative matters. As she no longer worked with high-ranking officials in the Intelligence Division, Muldrow lost her FBI credentials and unmarked car. Her work schedule also changed from working a “traditional Monday-through-Friday week” to a “rotating schedule” which often included weekends.
Muldrow sued the St. Louis Police Department claiming that her transfer was discriminatory because she was a woman. She alleged the terms and conditions of her job changed with the involuntary transfer. The trial court dismissed Muldrow’s case, and the Eight Circuit Court of Appeals agreed. The appeals court found that Muldrow’s discrimination claim failed because her title, salary, and benefits had remained the same and she could not show that the job transfer had caused her a “materially significant disadvantage.” Finding only “minor changes” in the terms and conditions of her job, the appeals court agreed Muldrow could not proceed with her discrimination claim.
Only “Some Harm” Threshold
Looking directly to the language of Title VII, the Supreme Court explained that Muldrow must show that the transfer caused some “’disadvantageous’ change in an employment term or condition” due to her sex for her job transfer to be discriminatory. To show discrimination, the law requires a difference in treatment where she is treated “worse” because of the protected trait (sex) such that there is some injury to her—but nothing in the law suggests “anything about how much worse.” Therefore, the Supreme Court held there must only be a showing of “some harm respecting an identifiable term or condition of employment,” and that harm need not be limited to the “economic or tangible.”
The Supreme Court rejected any suggestion that the law requires a disadvantage be “serious,” “substantial,” or “significant.” As it explained, to require a higher bar would “add words—significant words, as it were—to the statute Congress enacted” and demand “something more of her than the law as written.” It further noted that individuals must still prove an employer acted with discriminatory intent because of a protected trait.
Ultimately, the Supreme Court held that Muldrow must show only some injury regarding the terms or conditions of her employment such that the transfer “left her worse off, but need not have left her significantly so.” It remanded the case to the trial court for further proceedings but wrote that Muldrow’s claims would qualify as discriminatory under the test if properly preserved and supported. The fact that her “rank and pay remained the same, or that she still could advance to other jobs” is not relevant. Muldrow claimed her “responsibilities, perks, and schedules” changed when her new commander moved her from a premier position where she worked days with weekends off, worked on important investigations with high-ranking commanding officers, and had a take-home car to a less prestigious job with fewer opportunities, more administrative tasks, and worked a rotating schedule that included weekends. Her allegations, if proved, show “she was left worse off several times over.”
Practical Considerations and Key Takeaways for Employers
The Muldrow decision impacts cases alleging discrimination based on sex, race, color, religion, and national origin. While it remains to be seen how courts will apply this new “some harm” standard, employers should consider the following actions:
- Carefully review internal transfer requests from supervisors/managers to ensure that such actions are not based on an employee’s protected status.
- Train all supervisors, managers, human resources professionals, and others who are responsible for reviewing, considering, or determining job transfers.
As companies continue to monitor developments in this area, employers should carefully review their internal transfers and consider obtaining legal advice before approving a transfer that could give rise to a discrimination claim under this lower threshold.