Supreme Court Eases Burden for Title VII Plaintiffs Challenging Transfer Decisions
On April 17, 2024, the U.S. Supreme Court resolved a decades-old circuit split regarding what amount of harm a plaintiff must demonstrate to bring an employment discrimination claim under Title VII of the Civil Rights Act (“Title VII”). In Muldrow v. City of St. Louis, a unified Court ruled that a plaintiff need only show “some”—and not “significant”—harm from an employment decision to plead and prove employment discrimination under Title VII. Before Muldrow, a number of appellate courts dismissed transfer-based Title VII claims unless the plaintiff could show that the transfer resulted in “significant” harm. The Supreme Court rejected that standard in Muldrow, holding that a plaintiff need only show that the transfer resulted in “some harm” with respect to an identifiable term or condition of employment. The Supreme Court’s new standard raises fresh considerations for employers making transfer decisions, and may have broader implications beyond the transfer context.
Analyzing the Facts of Muldrow
The facts of Muldrow are key—as they demonstrate the breadth of employer activity that now falls within Title VII’s scope. Jatonya Muldrow (“Muldrow”) is a Sergeant with the St. Louis Police Department (“SLPD”). Between 2008 and 2017, Muldrow worked as a plainclothes officer in the SLPD’s Intelligence Division where she had access to, among other things, FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis. In 2017, the SLPD replaced Muldrow with a man and transferred her to a uniformed job in a new division, where she became responsible for supervising neighborhood patrol officers. Although Muldrow’s rank and salary remained the same, she no longer worked with high-ranking officials in the department, lost access to an unmarked take-home vehicle and had a less regular working schedule that occasionally required weekend shifts. Muldrow alleged that the Intelligence Division commander who transferred her sometimes called her “Mrs.” rather than the customary “Sergeant” and testified that her male replacement was a better fit for the division’s “very dangerous work.”
Muldrow sued the city for sex discrimination under Title VII, and identified the transfer as the adverse employment action. The district court granted summary judgment for the city and the Eighth Circuit affirmed. In granting and affirming summary judgment, the lower courts relied upon the Eighth Circuit’s “materially significant disadvantage” standard for Title VII cases. Before Muldrow, a Title VII discrimination plaintiff in the Eighth Circuit was required to plead and prove the challenged employment action resulted in a “materially significant disadvantage”. To meet this standard, the employment action usually had to result in a diminution to title, salary, or benefits.
Prior to Muldrow, the First, Second, Seventh, Eighth, and Eleventh Circuits each required a discrimination plaintiff show the challenged employment actions resulted in “serious”, “materially adverse” or “significant” harm. Other Circuits used different language to the same effect. The Fourth Circuit, for example, required “significant detrimental effect”, while the Third Circuit required the resulting harm be “serious and tangible enough.” Other circuits, including the Sixth Circuit and (perhaps surprisingly) the Fifth Circuit, were more lenient with the requisite showing of harm—requiring only that a plaintiff demonstrate some tangible negative impact on their terms, conditions, or privileges of employment. The net effect was that Title VII plaintiffs in some jurisdictions had a higher bar to discrimination claims than others. But after Muldrow, that disparity is no more.
The New Standard
The Supreme Court’s opinion, written by Justice Kagan, reversed the Eighth Circuit’s decision and resolved the Circuit split regarding the amount of tangible “harm” a Title VII plaintiff must show. Now, to make a Title VII discrimination claim, “a [plaintiff] must show some harm respecting an identifiable term or condition of employment,” but the plaintiff need not show that the harm incurred was “significant” or “serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” In short, Title VII plaintiffs have a universally lower bar to plead and prove discrimination claims.
Justice Kagan grounded her decision in the plain text of Title VII, reasoning that a heightened standard of “significance” would “add words” to the text of Title VII and impose a requirement on Title VII claimants that the law as written does not demand. While Justices Thomas and Alito, in concurrence, questioned whether the “some-harm” requirement would have any real impact on how lower courts apply the law, Justice Kagan maintained that “many cases will come out differently” because the Court’s decision lowered the bar Title VII plaintiffs must meet.
Finally, Justice Kagan addressed fears that the Court’s decision would “swamp[] courts and employees” with insubstantial lawsuits by noting that it is insufficient for a plaintiff to simply demonstrate “some harm” resulting from a transfer. As Justice Kagan observed, a plaintiff challenging a transfer decision must still show that his or her employer made the decision because of the employee’s membership in a protected class. As a result, Judge Kagan held, “courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions.” Regardless, Justice Kagan noted that, if the volume of Title VII claims did increase as a result of Muldrow, the fault lies with Congress, not the Court—as Title VII’s plain language imposes no requirement of “significant” harm.
Implications for Employers
The Supreme Court’s decision has important implications for businesses everywhere. Employers implementing transfers – especially for employees within a protected class – must closely scrutinize the terms and conditions of an employee’s new role to ensure the absence of harm. Among other things, employers should assess whether a contemplated transfer involves any negative repercussions for the employee; such as undesirable working conditions, unwelcome hours, less prestige or fewer responsibilities. And while Muldrow was limited to the transfer context, the case has broader implications for other managerial decisions within Title VII’s ambit. Indeed, post-Muldrow, “discrimination” under Title VII is not limited to modifying an employee’s wages, benefits, titles, or position. Ultimately, employers everywhere should scrutinize these managerial decisions closely, and continue to document the legitimate, non-discriminatory reasons supporting them.
We will continue to monitor the impact of the Supreme Court’s decision in Muldrow and provide updates as they become available.
