An employee claiming a job transfer was discriminatory under Title VII need only show that the transfer brought “some harm” with respect to a term or condition of employment, but the harm need not be significant under the Supreme Court’s Muldrow v. City of St. Louis decision.
“We had been seeing egregious examples in other cases where employees could not get remedies after discriminatory job transfers and that will no longer be the case after Muldrow,” said Boston University law professor Madeline Meth, one of Muldrow’s attorneys.
Writing for a unanimous Supreme Court, Justice Elena Kagan said, “There is reason to doubt the City’s prediction that employees will flood courts with litigation in the absence of a significant-injury requirement.” She explained that an employer still must have acted for discriminatory reasons because of protected traits, like race and sex, and caused some injury to the employee.
The ramifications of the ruling reach beyond Title VII. The Equal Employment Opportunity Commission, for instance, has already cited Muldrow in a case involving the Americans with Disabilities Act. “I don’t see how it could not be applied in the ADA and age discrimination contexts,” said Meth in noting that those laws use the same anti-discrimination language as Title VII.
Lateral job transfer?
The Supreme Court case involved a St. Louis police sergeant, Jatonya Muldrow, but similar scenarios often can arise in a private employment context.
The city transferred Muldrow from one unit to another with no change in her rank and salary. But while her pay remained the same, Muldrow claimed that her perks, responsibilities and schedule did not, and that the transfer occurred because she is a woman.
The alleged changes with the new position included —
- A less regular schedule, including weekend shifts instead of her former Monday-through-Friday workweek
- More administrative tasks
- No longer working with high-ranking officials and having to supervise day-to-day activities of neighborhood patrol officers
- Losing access to a department take-home car.
The Eighth Circuit Court of Appeals upheld a lower court’s ruling for the employer, finding Muldrow had to — but could not — show that the transfer caused her a “materially significant disadvantage.” It held that the transfer caused only minor changes in her working conditions.
However, the Supreme Court found the lower courts applied the wrong standard to Muldrow’s Title VII lawsuit. “The transfer must have left her worse off, but need not have left her significantly so,” wrote Justice Kagan. “And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare.”
Robert Loeb, a partner in Orrick’s Supreme Court and Appellate Litigation practice, represented the city before the Supreme Court. “Had she [Muldrow] proven those things and shown they were attributable to the City, we acknowledge she would have supplied sufficient evidence of job-related harm at the summary judgment state,” Loeb said. “But she didn’t prove up her allegations at summary judgment.”
Though the lower courts did not reach the issue, “she, of course, would also have to have proven discriminatory intent, and the evidence on that was also wanting,” added Loeb.
He does not view the ruling as something for employers to fear. “I don’t see it as a major change from where the law has been for Title VII,” Loeb told Legal Dive. “The ruling is beneficial as it provides greater clarity that some harm is required and can’t be presumed, as the petitioners were arguing.”
Concurring in the judgment for the employee, Justice Samuel Alito called the Court’s reasoning “unhelpful” that harm need not be substantial in saying, “I have no idea what that means.”
“I kind of agree with Justice Alito that it’s a tough standard to follow,” said North Carolina management-side employment attorney Robin Shea, of Constangy, Brooks, Smith & Prophete. “What is a little bit of harm?”
But Muldrow’s attorney, Madeline Meth, said the standard should not be difficult to follow. “It’s just asking, has the person been discriminated against and does it go to a term, condition or privilege of employment?” she told Legal Dive.
Reminder for companies
The Supreme Court’s ruling is a reminder that some employers have to do a better job documenting their transfer decisions and consulting with counsel. Having a legitimate, nondiscriminatory reason for the transfer remains a good defense.
Loeb agrees documentation is important and advises making sure that transfers are being done on merit. “Transfers are not inherently discriminatory,” he said. “ Employees still have to show some injury.”
Speaking generally about job transfers, Shea said, “Lots of companies just transfer people to get employees out of the way and transfer away problems instead of dealing with them in a constructive way. I’ve never liked the idea of transferring somebody, but now there is a stronger way to persuade clients to think twice.”
DEI implications
While the Muldrow opinion makes no mention of diversity, equity and inclusion, some employment law observers speculated that a pro-employee ruling in the case could spark increased challenges to workplace DEI programs or affinity groups.
In a statement last year, EEOC Commissioner Andrea Lucas identified a number of DEI initiatives that Muldrow could affect, including “race-restricted access to mentoring, sponsorship or training programs, selecting interviewees partially due to diverse candidate slate policies, to tying executive or employee compensation to the company achieving certain demographic targets.”
But Meth countered, “People should be quite skeptical that Muldrow will affect DEI programs. This case doesn’t really tell us anything on DEI.”