U.S. Supreme Court Holds That Title VII Requires Employees Establish Only “Some Harm” As A Result Of Transfer, Rejecting Lower Court Ruling That Harm Must Be “Significant” To Constitute Discrimination – Employee Benefits & Compensation

Executive Summary: Can an employer be
sued by an employee for an alleged discriminatory transfer? The
answer had been yes, so long as the transfer was based on a
discriminatory reason and resulted in a “significant”
employment disadvantage. That changed yesterday with the Supreme
Court’s decision in Muldrow v. City of St. Louis,
Missouri. In Muldrow, the Court rejected the
“significant harm” test, for the more lenient “some
harm” standard. In other words, to succeed on a discriminatory
transfer claim under Title VII, an employee now must show only that
“some harm” resulted.

Title VII of the Civil Rights Act of 1964, as amended, prohibits
an employer from “fail[ing] or refus[ing] to hire or to
discharge any individual, or otherwise discriminate against any
individual with respect to [their] compensation, terms, conditions,
or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” While transfer is
not specifically mentioned in the language, courts nearly
unanimously have held it falls within Title VII’s
“otherwise discriminate” clause. Until yesterday,
however, the severity of the harm required in most Circuits was
generally that it had to be “significant.”

Background: In Muldrow, the plaintiff,
Jatonya Clayborn Muldrow, was a plainclothes police officer
employed by the St. Louis Police Department in its Intelligence
Division. Because of this assignment, she had a regular Monday to
Friday work week, was a deputized member of the FBI Task Force, had
FBI credentials, and was granted a take-home car. A new commander
replaced Officer Muldrow with a male officer, and Officer Muldrow
was transferred to the patrol division. There, she was required to
wear a uniform, no longer had a set schedule, and lost her FBI
credentials, status, and car. She suffered no loss of wages or rank
and remained a supervisor. Muldrow sued the city for gender
discrimination based on her transfer. The District Court held that
the harm suffered by Officer Muldrow was not
“significant,” and granted summary judgment to the city.
The Eighth Circuit affirmed, holding that because the transfer
“did not result in a diminution to her title, salary, or
benefits,” Muldrow did not suffer a “materially
significant disadvantage.”

Supreme Court Decision: The Supreme Court
granted certiorari “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.” In its opinion delivered by
Justice Kagan, the Supreme Court rejected that there must be a
“significant harm,” adopting a standard that a transfer
must, instead, cause “some harm” to “an identifiable
term or condition of employment.”

The Court began with Title VII’s language, specifically the
terms “discriminate against” “with respect to”
the “terms and conditions” of employment. The Court
reasoned taken together, these terms require a litigant to prove
differential treatment, i.e., worse treatment, that causes injury
– one that is a “‘disadvantageous’ change in an
employment term or condition.” Rejecting that harm must be
“significant,” the Court noted Title VII does not use the
word “significant,” nor does it quantify how “much
worse” one must be treated to be protected by Title VII.
Rather, only that it is “worse.” The Court further
rejected that the harm suffered during a transfer must be equally
significant as the harm caused by failing to hire or terminating an
employee, that precedent requires a different conclusion, or that
there is any public policy consideration – namely, increased
litigation in the courts – that would trump Title VII’s
plain language. In doing so, the Court clarified that irrespective
of its holding, a litigant must still “show some injury,”
that the injury “concern the terms and conditions of []
employment,” and that the employer “acted for
discriminatory reasons.” As to the latter, the Court stressed
that a less harmful act may not be suggestive of discriminatory
intent.

Although Justices Thomas, Alito, and Kavanaugh concurred in the
judgment, they criticized the majority’s decision. Most
notably, Justice Alito characterized the majority’s opinion as
“unhelpful” because it provides no guidance as to the
meaning of “harm,” and the common meaning of
“harm” – “physical or mental damage”
– and “injury” – “an act that damages,
harms or hurts; an unjust or underserved infliction of suffering or
harm” – denotes “at least some degree of
significance or substantiality.” In Justice Alito’s
opinion, courts “will continue to do pretty must just what
they have done for years,” unchanged by the holding in
Muldrow. Justice Thomas agreed. Justice Kavanaugh’s
concern lies in that the term “some harm” also is neither
used nor defined by Title VII, and nearly any transfer will cause
“some harm” that should meet the necessary standard,
making the majority’s approach unnecessary.

The Bottom Line

Although decided under Title VII, Muldrow will be
equally applicable to other federal anti-discrimination statutes,
such as the Age Discrimination in Employment Act and the Americans
with Disabilities Act. Many employers, like St. Louis in
Muldrow, have successfully defended lawsuits alleging
discriminatory forced transfers with the argument that a transfer,
absent a change is salary, benefits or other tangible employment
benefits, is not actionable. Muldrow changes this, making
it easier for employees to prove their forced transfer
discrimination claims. Under Muldrow, the lesser and
nontangible effects of transfer, such as a less favorable office,
different work schedule, a new supervisor, or new work assignments,
may now be actionable if they result in “some harm.” What
Muldrow does not do, as pointed out by Justice Alito in
his concurring opinion, is define the limits or meaning of
“some harm.” While it remains to be seen if this decision
will “open the flood gates” to discriminatory transfer
claims, employers should expect increased motion practice over the
meaning of “some harm” as the courts grapple with
Muldrow‘s effect and how to interpret this
new standard.

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