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. Read more
