Mark Wiletsky
Can an employee sue under Title VII to challenge a lateral transfer, even if the transfer does not result in a loss of pay? According to a recent U.S. Supreme Court decision, the answer is: Yes. Employers transfer employees, or take other actions, for a variety of reasons. Until recently, so long as those decisions did not significantly or materially impact the employee’s terms and conditions of employment, the employee did not have a viable discrimination claim. That standard is no longer the law of the land. Now, if there was “some harm” as a result of a transfer or other action, and the action was based on an employee’s protected characteristic, the employee can assert a discrimination claim.
Factual Background. From 2008 through 2017, Sergeant Jatonya Clayborn Muldrow worked in a coveted position in the specialized Intelligence Division of the St. Louis Police Department. In 2017, her new commander sought to replace her with a male officer. The new commander did not fire her; instead, he transferred Muldrow to a uniformed role in another department. Although her rank and pay remained unaltered, the responsibilities, privileges, and schedule of her new position significantly differed from her previous role. In Muldrow’s original role, she worked in a “premier position” with high-ranking officials on department priorities in the Intelligence Division. Her new role, she claimed, was less prestigious or focused more on administrative tasks. Muldrow supervised day-to-day activities of neighborhood patrol officers, including approving their arrests, reviewing their reports, and handling other administrative matters; she even did some patrol work herself. As a result of the transfer, Muldrow lost her FBI status and the car that came with it, and she went from a regular Monday through Friday schedule to working a “rotating schedule,” including weekend shifts.
Muldrow filed suit under Title VII, alleging that her reassignment constituted sex-based discrimination affecting her employment terms, conditions, or privileges.
The District Court dismissed her claim on summary judgment, and the Eighth Circuit Court of Appeals affirmed. Both courts held that Muldrow had to, but could not, show that the transfer had caused her a “materially significant disadvantage.” These decisions were in line with the majority of courts that had addressed the standard for discrimination, requiring proof of significant harm or disadvantage resulting from the disputed job transfer.
Supreme Court Lowers the Bar. On April 17, 2024, the Supreme Court reversed, holding that the lower courts used too stringent of a standard when evaluating Muldrow’s claim. The Court explained that a plaintiff alleging discrimination under Title VII must only demonstrate “some harm” regarding the associated employment term or condition, rather than a significant disadvantage. Reviewing the text of Title VII, the Court noted that “discriminate against” meant to treat someone worse based on the worker’s sex or other protected categories. The decision stressed that the statute as written did not demand evidence of significant harm, but only some disadvantage based on the individual’s protected status.
Practical Implications for Employers. The Court’s decision broadens the interpretation of what can be considered discriminatory under Title VII and, as a result, lowers the bar for the types of actions that can be considered discriminatory under Title VII. In light of this decision, employers must consider their actions carefully, even in situations where an employee suffers no loss of pay or other material change in employment terms and conditions. A seemingly innocent job transfer that results in no loss of pay, seniority, or title could be viewed as discriminatory if the employee suffers “some” harm. The lowered standard applies to any decision that might negatively impact an employee. That said, the action only violates the law if it is based on an individual’s protected status, such as race, sex, or religion. The best way to avoid the perception of discrimination is to ensure there are documented legitimate, nondiscriminatory reasons for the job action. For example, before transferring an employee, be sure the manager or supervisor can explain why the transfer is necessary or appropriate; if the transfer is based on performance issues, it is helpful to have documented those performance issues before the transfer occurs. Ultimately, there is no way to completely eliminate the risk of a lawsuit, but employers can substantially mitigate those risks by ensuring there are objective, documented reasons for the actions taken with respect to an employee.
