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The Supreme Court Clarifies the Requisite Harm Employees Must Show to Bring Viable Discrimination Claims Based on Job Transfers

pexels-phung-touch-675001486-17843099-scaledOn April 17, 2024, in Muldrow v. City of St. Louis, the Supreme Court held that an employee bringing a discrimination claim under Title VII based on a job transfer does not need to show that she suffered significant harm with respect to the transfer, only that she suffered some harm.

Background Facts

Sergeant Jatonya Muldrow worked as a plainclothes officer at the St. Louis Police Department in the specialized Intelligence Division from 2008 through 2017. As part of her position, Sergeant Muldrow was deputized as a Task Force Officer with the Federal Bureau of Investigation, which granted her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigation outside St. Louis. She also worked with high-ranking officials on the Intelligence Division and worked a traditional Monday through Friday schedule.

In 2017, the new Intelligence Division commander, Captain Michael Deeba, requested to replace Sergeant Muldrow with a male officer and the Department transferred her to a uniformed job in a different section of the Department. Captain Deeba testified that the male officer seemed like a better fit for the Division’s “very dangerous” work despite the fact that the prior Intelligence Commander praised Sergeant Muldrow’s work performance stating, “if there was one sergeant he could count on in the Division,” it was her. While Sergeant Muldrow’s rank and salary remained the same in her new position, her job responsibilities, perks, and schedule changed. In her new role, Sergeant Muldrow supervised the daily activities of neighborhood patrol officers and did some patrol work herself. She lost her FBI status and corresponding car, and she had to work on a rotating schedule that involved weekend shifts. As a result of this job transfer, Muldrow sued the City of St. Louis for sex discrimination. Specifically, Muldrow alleged that she was transferred to a lesser position because she is a woman.

Procedural History

The district court granted the City summary judgment; in other words, the district court ruled that Sergeant Muldrow’s discrimination claim failed because there was no evidence that she suffered a material employment disadvantage. The district court reasoned that Sergeant Muldrow did not show that her job transfer made a “significant” harmful change in her working conditions, and she had not met that standard as she had not suffered any change to her rank or salary. Sergeant Muldrow appealed that decision, and the Court of Appeals for the Eighth Circuit affirmed the district court’s decision. The Eighth Circuit further explained that Sergeant Muldrow only experienced minor changes in working conditions—again, emphasizing the requirement that there be “significant” harmful change in her working conditions and Sergeant Muldrow did not experience that because she maintained the same title, salary, and benefits in her new position.

Title VII’s Language and the Court’s Rationale

Under Title VII, it is 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, color, religion, sex, or national origin.” In order for a job transfer to meet this standard, it must bring about some disadvantageous change in an employment term or condition, but those terms or conditions are not limited to economic or contractually defined harm. To further emphasize this point, the Court reiterated its reasoning in Bostock v. Clayton County that Title VII protects against discrimination, and to discriminate against means to treat worse based on a protected characteristic. Nowhere in the text of the statute does it state that someone subjected to a job transfer must show that she was treated worse and experienced “significant” harm. The Court emphasized that to incorporate “significant” harm into the definition of what it means to discriminate against someone with respect to the terms or conditions of employment is to add language that Congress did not intend to include.

The Court rejected three main arguments from the City:

  1. Title VII makes it unlawful “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, color, religion, sex, or national origin.” The City noted that the words used prior to “terms, conditions, or privileges of employment” described failing or refusing to hire or discharging an employee, which all have the commonality of being a significant disadvantage. As a result, the City argued that this meant the terms or conditions of employment were also defined by that commonality of significant disadvantage. The Court rejected that argument and suggested that the commonality between failing or refusing to hire or discharging an employee was that they are all employment actions and thus, these words do not mean an employee must suffer a significant disadvantage under the terms, conditions, or privileges of employment as a result of a job transfer to be protected under Title VII.
  2. The City argued that the same standard used to prove retaliation should be used for discrimination under Title VII, and the retaliation standard requires that an employer take “materially adverse action” against an employee for bringing or aiding a Title VII charge. In Burlington Northern & Santa Fe Railway Co. v. White, the Court held that the anti-retaliation provision only applies when the retaliatory action is “materially adverse,” which means that it causes “significant harm.” In that case the Court explained that a “materially adverse” action is one that would “dissuade a reasonable worker from making or supporting a charge of discrimination.” In Muldrow, the Court rejected the City’s argument for a single standard for adverse actions under both discrimination and retaliation theories. Whether an action causes significant enough harm to deter an employee in the discrimination context is irrelevant; all that matters for finding discrimination is that the employment action cause harm.
  3. The City made a public policy argument that using a discrimination standard regarding job transfers that does not require the plaintiff to show “significant” harm will open the floodgates to non-meritorious discrimination claims. The Court again rejected the City’s argument and explained that Title VII still requires the plaintiff show some injury and that the employer acted because of a protected characteristic, so courts will still have ways of disposing of meritless claims.

The Muldrow decision is a victory for employees who experience discrimination in the form of a job transfer because it corrects the erroneously heightened standard that lower federal courts were using to evaluate the merits of a plaintiff’s Title VII discrimination claim based on such action. The Court has made clear that in a job transfer situation, Title VII only requires that a plaintiff show the transfer caused some harm to make out a discrimination claim.

Muldrow brings federal anti-discrimination law under Title VII closer in line with state anti-discrimination law under M.G.L. c. 151B. In 2019, in Yee v. Massachusetts State Police, the Massachusetts Supreme Judicial Court (SJC) held that a job transfer, or the failure to grant a requested job transfer, may constitute adverse action under 151B. The SJC defined adverse action as one that causes a material disadvantage in objective aspects of an individual’s employment, but also noted that an individual’s subjective feelings about what constitutes an advantage or disadvantage to her personally were also important factors to consider: citing a change from a day shift to an evening shift as disadvantageous depending on the person. Although Yee requires an employee to suffer a material adverse action to prove discrimination as a result of a job transfer and Muldrow does not, both cases highlight that the harm suffered from a job transfer does not need to meet a narrowly defined standard of harm to constitute discrimination.

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