US Supreme Court Lowers the Bar Title VII Plaintiffs Must Meet When Alleging a Discriminatory Transfer
On April 14, 2024, the Supreme Court upended almost thirty years of precedent when it, by its own admission, “lower[ed] the bar Title VII plaintiffs must meet” when alleging a discriminatory transfer. In Muldrow v. City of St. Louis, Missouri, No 22-193, 601 U.S. ___ (2024), the Court held that a transferred employee who did not suffer a change in title, salary, or benefits, could nevertheless maintain a claim of discrimination under Title VII.
Specifically, the Court held that an employee challenging a job transfer under Title VII “must show some harm with respect to an identifiable term or condition of employment,” but that the harm need not be significant, serious, or substantial. The Court reasoned that requiring significant harm would add words to the language of Title VII, such that “the law as applied [would] demand[] something more of [plaintiff] than the law as written.” Thus, under the standard set forth in Muldrow, a transfer “must have left [plaintiff] worse off, but need not have left her significantly so.”
Muldrow, a female police officer, was transferred against her wishes from a plain-clothes, nine-to-five job in the police department’s intelligence division to a uniformed position where she supervised neighborhood patrols. As a result of the transfer, she lost the use of an unmarked take-home car and was often required to work weekends. Muldrow’s allegations, according to the Court, met her burden of showing some harm.
Despite acknowledging that its decision “changes the legal standard used,” the Court brushed aside any argument that its decision would open the floodgates to discrimination claims. Although the Court conceded that “a court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination,” this does not appear to be a meaningful limitation, given the suggestion by the Court that any one of the consequences alleged by Muldrow – less prestigious assignments, less favorable work schedule, loss of a take-home vehicle, less opportunity to network with superiors – was, on its own, sufficient to meet her burden under Title VII.
We will learn in the next few months and years whether the Court was right, and that the requiring of a showing of at least “some” harm will prevent a flood of discrimination cases. But in the meantime, the risk for employers is real. After all, most involuntary transfers leave employees worse off in their terms or conditions of employment (at least in the employee’s own estimation); transfers that result in better terms and conditions of employment are rarely involuntary. Moreover, as Justice Kavanaugh recognized, “anyone who has been transferred…should easily be able to show some additional harm – whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.” Employers should seriously evaluate the potential risks of complaints when making any employment decisions, from situations like the transfer in Muldrow all the way to the simple act of moving employees to different shifts or different offices.