Last week, on April 17, 2024, the US Supreme Court unanimously held in Muldrow v. City of St. Louis, Missouri, et al., that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964 (Title VII) needs to show they suffered “some harm” under the terms of their employment, but the harm need not be “material,” “substantial,” or “serious.” The decision resolves a circuit split over the degree of harm needed for a Title VII claim, generally lowering the bar and making it easier to bring a claim.

Title VII Background

Title VII is the federal antidiscrimination statute governing private employers with 15 or more employees. Title VII protects employees and job applicants from employment discrimination with respect to “compensation, terms, conditions, or privileges of employment,” on the basis of race, color, religion, sex, or national origin.

Plaintiffs must prove that they suffered an adverse employment action to pursue a Title VII discrimination claim. Circuit Courts have been split as to the level of harm required under an “adverse employment action” for Title VII purposes. For example, the Second Circuit requires a showing of more disruption than a mere inconvenience or an alteration of job responsibilities, including termination or demotion. The Eleventh Circuit considers an employment action as adverse when it results in some tangible, negative effect and meets a threshold level of substantiality. However, even with the circuit split over the degree of harm, all courts agreed that major decisions, such as refusing to hire, fire, demoting, or failing to promote all meet the requirement of an adverse employment action.

In Muldrow, which involved a job transfer without loss of pay or rank, the Supreme Courtresolved the circuit split as to the level of harm required to establish a Title VII violation.

Factual and Procedural Background

Sergeant Jatonya Clayborn Muldrow was a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division from 2008 through 2017.  In 2017, the new Intelligence Division commander asked to transfer Muldrow out of the unit and replace her with a male police officer.  The Department approved the request and reassigned Muldrow to a uniformed job elsewhere in the Department. Although Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks and schedule did not.  Muldrow no longer worked with high-ranking officials in the Intelligence Division; instead, she supervised the day-to-day activities of neighborhood patrol officers.  She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts.

Muldrow brought a Title VII suit challenging the transfer, alleging the City had discriminated against her based on her sex with respect to the terms and conditions of her employment.  The District Court granted the City’s summary judgment motion, and the Court of Appeals for the Eighth Circuit affirmed, holding that Muldrow had to – but could not – show that the transfer caused her a “materially significant disadvantage” such as a “diminution to her title, salary, or benefits” and instead caused “only minor changes in working conditions.” The Eighth Circuit maintained that the changes in her job responsibilities were “insufficient” to support a Title VII claim.

Supreme Court Decision

The Supreme Court first analyzed the text of Title VII, stating that the statutory language requires Muldrow to show the transfer brought about some “disadvantageous” change in an employment term or condition.  In this case, the parties agreed that her transfer was a change in her employment terms or conditions.  The words “discriminate against” means to treat worse, here based on sex, with respect to an employment term or condition.  The “terms or conditions” phrase is not used in the narrow contractual sense and covers more than the economic or tangible.  Thus, to make out a Title VII discrimination claim, according to the Court, an employee must show some harm respecting an identifiable term or condition of employment. The employee does not have to show that the harm incurred was significant, serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.  To demand “significance” is to add words to the statute Congress enacted.

The Court also stated that the anti-discrimination provision simply “seeks a workplace where individuals are not discriminated against” because of traits like race and sex. The provision flatly “prevents injury to individuals based on” status without distinguishing between significant and less significant harms.  Therefore, the Court of Appeals applied the wrong standard – requiring Muldrow to show that the allegedly discriminatory transfer out of the Intelligence Division produced a significant employment disadvantage – instead, she only needs to “show some injury respecting her employment terms or conditions.”  The transfer must have left her worse off, but not significantly so. 

Here, Muldrow was moved from a plainclothes job in a prestigious specialized division, which provided her with substantial responsibility over priority investigations and frequent opportunity to work with police commanders, to a uniformed job supervising one district’s patrol officers, where she was less involved in high-visibility matters and primarily performed administrative work.  Her schedule also became less regular, requiring her to work weekends, and she lost her take-home car.  In the Court’s view, if these allegations are proved, she was left worse off several times over.  It does not matter that Muldrow’s rank and pay remained the same or that she could still advance to other jobs. Title VII prohibits making a transfer, based on sex, with the consequences Mulrow alleged.  For these reasons, the Court remanded the case for further proceedings consistent with its articulation of the requisite harm standard.

Implications for Employers

Although the Muldrow decision involved a sex discrimination claim based on a job transfer, the decision, on its face, did not limit the holding to transfer cases.  It is likely this decision will be applied to Title VII claims outside the context of alleged discriminatory transfers, including in the context of reverse discrimination claims challenging DEI initiatives as long as they entail some degree of alleged harm related to a term or condition of employment – without distinguishing between significant and less significant harms. Under this lower threshold, initiatives that may have escaped challenge as not involving a substantial or material impact on terms and conditions of employment now may be challenged more readily.

Ballard Spahr’s Labor and Employment Group regularly advises clients on compliance with anti-discrimination laws, including ensuring that DEI programs and workplace policies and procedures are current and compliant.