08-20-2024
By Sheila McAndrew, Esq.
Against the backdrop of the frequently highlighted divisions at the U.S. Supreme Court, and much debate about potential Court reform[1], the justices recently showed some cohesiveness. Resolving a split in the Circuit Court of Appeals, the justices handed down a unanimous decision creating a new standard for an “adverse employment action” when establishing a case of discrimination under federal law.
In Muldrow v. City of St. Louis, Missouri, No. 22-193, slip op. (April 17, 2024) the plaintiff, Jatonya Clayborn Muldrow, a sergeant in the St. Louis police department, spent several years as a plainclothes officer in the Intelligence Division until she was transferred to another role as a uniformed police officer. This change led to a different work schedule and responsibilities for Sergeant Muldrow, but her rank and salary remained the same. Her former role in the Intelligence Division was filled with a male. Sergeant Muldrow did not request the transfer and was not happy about it. She filed a sex discrimination charge alleging Title VII violations and later filed a court action, which ultimately was appealed to the Supreme Court.
For decades, certain federal courts-including the Eighth Circuit, where Sergeant Muldrow brought her claim–have held that proving an adverse employment action under Title VII of the Civil Rights Act, requires a showing that the action resulted in a significant disadvantage or some other measure greater than merely “some” harm to the employee. Sergeant Muldrow challenged this requirement by arguing that the plain language of Title VII does not require any particular type of harm and that the showing of disparate treatment due to sex is an adequate showing of harm under the statute. The City of St. Louis, instead, argued that without a requirement of some measure of a significant level of harm, the courts would be swamped with lawsuits from transferred employees. The lower courts in Muldrow followed the standard set by the Eighth Circuit, requiring Sergeant Muldrow to show that the transfer caused a “materially significant disadvantage,” and found that her transfer did not meet that burden, prompting Sergeant Muldrow to appeal to the Supreme Court.
In the end, Justice Kagan, writing for the Supreme Court, held that an employee challenging a job transfer under Title VII must show that the transfer brought about “some” harm (rejecting Sergeant Muldrow’s argument that discrimination based on a protected characteristic is adequate), but that harm need not be “significant” (rejecting the contrary assertion of the City of St. Louis).
Impact on Employers
Muldrow impacts the risk associated with lateral transfers like Sergeant Muldrow’s with no accompanying change to title or salary, as “some” harm might still be found by a court. Employers would be wise to evaluate transfer decisions in a similar manner as terminations or promotions. Beyond this, it remains to be seen how much of a practical impact this will have on discrimination lawsuits, generally. The change from a heightened standard, using terms such as “material” or “significant,” to a lesser standard of “some” harm may increase the number of discrimination filings under Title VII or those surviving pre-trial litigation. This may include an increased number of challenges to employer activities, where, in the past, potential plaintiffs may have felt it was too difficult to prove “significant” harm. These might include schedule changes, relocations, modified job duties, removal of perquisites, changes to work conditions or even the perceived results of DEI programs.
Conclusion
Although the Supreme Court was unanimous in its decision, the justices differed in their opinions regarding its import. For example, Justice Kagan predicted that, as a result of the standard change in Muldrow, “many cases will come out differently[2].” In contrast, Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh, while agreeing with the outcome of the majority opinion, provided different analyses in three separate concurring opinions, each indicating they did not foresee this change having a major impact on the number of cases going forward[3], predicting that courts will apply this new standard in largely the same way as the old one[4], albeit using different language[5].