Muldrow Case Recalibrates Title VII “Significant Harm” Standard – Discrimination, Disability & Sexual Harassment

On April 17, 2023, the Supreme Court handed down a unanimous decision in Muldrow v. City of
St. Louis, Missouri, No. 22-193, holding that transferees
alleging discrimination under Title VII of the Civil Rights Act of
1964 need only show that a transfer caused harm with respect to an
identifiable term or condition of employment. The Court’s
decision upends decades of lower court precedent applying a
“significant harm” standard to Title VII discrimination
cases. As a result, plaintiffs claiming discrimination under Title
VII will likely more easily advance beyond motions to dismiss or
motions for summary judgment. In the wake of the Court’s
decisions in Students for Fair Admissions, Inc. v. President
and Fellows of Harvard College (6-2), No. 20-1199, and
Students for Fair Admissions, Inc. v. Univ. of North
Carolina (6-3), No. 21-707 (June 29, 2023), Muldrow
will also likely continue to reshape how employers conceive of,
implement, and communicate workplace Diversity, Equity and
Inclusion (“DEI”) efforts. The decision may be used by
future plaintiffs in “reverse” discrimination actions to
challenge DEI or affinity programs that provide non-economic
benefits to some – but not all – employees. For
example, DEI programs focused on mentoring or access to leadership
open only to members of a certain protected class could be
challenged under Muldrow by an employee positing that
exclusion from such programs clears this new, lower standard of
harm.

Background and Muldrow’s Journey Through the Lower
Courts

Plaintiff, a Sergeant in the St. Louis Police Department,
alleged that following statements by her supervisor that he wanted
to replace Plaintiff with a male police officer, she was
transferred to a different division. While Plaintiff’s rank and
pay remained the same, her responsibilities, perks, and schedule
changed. Plaintiff brought suit against her employer alleging sex
discrimination under Title VII. Defendants prevailed on summary
judgment in the Eastern District of Missouri, where the Court found
that plaintiff was required—and failed—to show that her
transfer effected a “‘significant’ change in working
conditions producing a ‘material employment
disadvantage'” (applying the “Substantial Harm
Standard”). The District Court held that the loss of
networking opportunities, her continued—though
diminished—supervisory role, and switch to a rotating
schedule that included weekend work did not amount to a material
employment disadvantage. On appeal, the Circuit Court for the Eight
Circuit agreed, affirming the District Court’s finding that
Plaintiff could not show that the transfer caused a
“materially significant disadvantage.” The Supreme Court
heard the case to resolve a circuit split over whether an employee
challenging a transfer under Title VII must demonstrate a
heightened threshold of harm.

The Supreme Court Majority Opinion

Title VII makes it unlawful for employers “to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” §2000e–2(a)(1). In its majority
opinion, the Supreme Court explained that the plain language of
Title VII required plaintiff to show that her transfer brought
about some “harm respecting an identifiable term or condition
of employment.” Importantly, the harm needn’t be
significant, substantial, “or any similar adjective suggesting
that the disadvantage to the employee must exceed a heightened
bar.” The Court reasoned that to apply a standard demanding
“significance” impermissibly adds “significant
words” to the statute that Congress enacted.

The Court also addressed the Defendant’s concerns that
overruling the Substantial Harm Standard would open the floodgates
for transferred employees by reminding the parties that the
anti-discrimination provision requires some injury concerning the
terms or conditions of employment and evidence that the
employer acted for discriminatory reasons. The Court advised that
courts may consider whether the harmful acts alleged suggests
discriminatory intent. The Court then remanded the case to the
Circuit Court to determine whether plaintiff’s claimed harms
are sufficiently disadvantageous under the Supreme Court’s
newly lowered standard.

Concurrences from three Justices explore the nuance – or
decry the lack thereof – in the Court’s majority opinion.
Justices Thomas, Alito, and Kavanaugh each filed separate opinions
concurring in the judgment. Justice Thomas concurred with the
Court’s conclusion that Title VII does not require a heightened
showing of harm, but opined that the Eighth Circuit’s
interpretation of Title VII required a harm that was “more
than … trifling,” suggesting that he found that court’s
approach sound. However, he suggested that even under this
standard, Muldrow’s claim should fail, because she failed to
prove that her transfer resulted in any harm. Justice Alito’s
concurrence, like Thomas’, suggested that he saw “little
if any substantive difference” between the majority’s
standard and the standard applied by the Eighth Circuit, and that
trial judges “will continue to do pretty much just what they
have done for years” in assessing claims of discrimination,
without regard for the supposedly changed standard. Justice
Kavanaugh, in contrast, endorsed the position taken by the D.C.
Circuit, which had held that a transfer was actionable even absent
a showing of harm, because any transfer decision based on
a protected characteristic – i.e., “discrimination”
– violates Title VII, whether harmful or not.

What does Muldrow Mean for employers?

Employers facing discrimination claims should be aware of the
lowered Muldrow standard in Title VII discrimination
cases. Changes concerning the terms and conditions of employment
once deemed insufficient under a “substantial harm”
standard may now pass muster under the Muldrow standard.
And, employers should yet again revisit the structures and goals of
their DEI and affinity programs in light of this newly clarified
scope of Title VII protections.

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guide to the subject matter. Specialist advice should be sought
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