Supreme Court Lowers the Bar for Challenging Discriminatory Job Transfers Under Title VII

Today, the U.S. Supreme Court made it easier for employees to challenge discriminatory job transfers. In Muldrow v. City of St. Louis, the Court held that an employee challenging a job transfer under Title VII must show that the transfer brought about “some harm” with respect to an identifiable term or condition of employment, but that the harm need not be “significant.”   

The Facts

Sgt. Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s (“Department’s”) specialized Intelligence Division. She worked in this role for about nine years, from 2008 to 2017. During this time, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and was head of the Gun Crimes Unit. Because of her role, she also had FBI credentials, an unmarked take-home car, and the authority to pursue investigations outside St. Louis. She worked a traditional Monday-through-Friday week. 

When a new commander of the Intelligence Division, Capt. Michael Deeba, arrived in 2017, he asked the Department to transfer Muldrow out of the unit. Deeba, who sometimes called Muldrow “Mrs.” instead of “Sergeant,” wanted to replace Muldrow with a male officer who he though was a better fit for the Intelligence Division’s “very dangerous” work. 

The Department approved the request, and Muldrow was transferred out of her, as she put it, “premier position” to a less “prestigious” and more “administrative” uniformed job. Though Muldrow’s rank and pay stayed the same, little else did. Muldrow was no longer working with high-ranking officials on departmental priorities; she was supervising the day-to-day work of neighborhood patrol officers. She lost her FBI status and the take-home car. And she was assigned a “rotating schedule” that included weekend shifts.

The Lawsuit

Muldrow sued the Department under Title VII, arguing that it discriminated against her on the basis of sex when it transferred her out of the Intelligence Division. 

The district court granted the Department summary judgment, finding that Muldrow needed, but had failed, to show that the transfer resulted in a “‘significant’ change in working conditions producing ‘material employment disadvantage.’” The Eighth Circuit Court of Appeals affirmed, agreeing that Muldrow had not shown that the transfer caused a “materially significant disadvantage.” The court noted that Muldrow’s transfer had not resulted in a diminution to her title, salary, or benefits, and it rejected Muldrow’s claim that the change in her responsibilities and perks were sufficient to meet Title VII’s requirements.

The Supreme Court granted certiorari to resolve a split in the circuit courts 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.” 

The Decision

The Supreme Court, in an opinion by Justice Kagan, held that there is no “heightened threshold of harm” in a Title VII transfer case. 

The Court relied principally on the relevant language of Title VII, which prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of the individual’s sex. The Court reasoned that while that language requires a transferee to “show some harm respecting an identifiable term or condition of employment,” on its face it does not impose any requirement that that harm be “significant. . . . [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” As the Court explained: “‘Discriminate against’ means treat worse . . . But neither that phrase nor any other says anything about how much worse.”

After articulating the new test, the Court went on to find that Muldrow’s allegations met the test, “with room to spare.” All Muldrow had to show was that she suffered “some injury” respecting her terms and conditions of employment; in other words, that the transfer left her “worse off,” but not necessarily “significantly so.” Her allegations regarding the changes in her responsibilities, work schedule, and perks were enough.

The majority opinion drew several separate writings. Justices Thomas and Alito questioned whether the majority’s new test is actually “new.” As Justice Alito wrote: “I see little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like. The 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.” And Justice Kavanaugh wrote separately to reject the majority’s “some harm” requirement, explaining that, “the text of Title VII does not require a separate showing of some harm. The discrimination is harm.”

What Employers Should Know

Most employment discrimination cases in the state are brought under the Fair Employment and Housing Act (“FEHA”), which carries with it a low bar for what constitutes an actionable adverse employment action. For employers in California, the Supreme Court’s opinion likely will not have much of a direct impact. That said, this case is an important reminder for employers to exercise care whenever making a change to an employee’s terms or conditions of employment (e.g., promotions, demotions, transfers, reassignments, etc.). Ensuring fair treatment to all employees at each step of the employment relationship—not just hiring and firing—is not just good business sense and key to avoiding messy and costly litigation, it is also the right thing to do.