The U.S Supreme Court, in resolving a split among various Circuit courts, set a new standard for the amount of harm a plaintiff must demonstrate to bring an employment-related discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII).
Over the years various Circuit courts have applied differing levels of the requisite harm required to show discrimination, resulting in an ever-shifting threshold. In the case Muldrow v. City of St. Louis, the Court found that only a showing of “some” harm because of a wrongful employment decision is sufficient to plead/prove discrimination under Title VII.
Muldrow involves a transfer situation. Sergeant Muldrow of the St. Louis Police Department alleged a discriminatory transfer from one job to another because of sex. Muldrow was a female plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. After refusing a new Division commander’s request that she transfer out of the unit so he could replace her with a male police officer, Muldrow was transferred to a uniformed job elsewhere in the Department. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. After the transfer, Muldrow no longer worked with high-ranking officials in the Intelligence Division, instead supervising 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.
A lower court ruled – and the Eighth Circuit upheld – that Muldrow had to – but could not – show that the transfer caused her a “materially significant disadvantage.” On appeal, the U.S. Supreme Court’s ruling found that an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.
What Does It All Mean?
Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of sex or another protected classification.
The words, “discriminate against” have been found in other of the Court’s opinions to refer to “differences in treatment that injure.” This is why the ‘terms, conditions, or privileges of employment’ aspect of the statute are interpreted broadly to include not just obvious actions such as termination but other actions such as those experienced by Muldrow (e.g., changes in working conditions that impacted her career and career potential).
While the facts in Muldrow concern a transfer from one position to another, its holding has broader implications. The Court’s plain reading of the statute’s requisite ‘harm’ now makes clear that all plaintiffs – regardless of the type of adverse employment action[i] alleged – will have a much lower bar when it comes to proving harm. Nonetheless, employers should keep in mind that a seemingly lower standard of harm does not mitigate the requirement that an adverse employment action be made because of the employee’s membership in a protected class.
Employers should carefully consider business decisions that impact an employee’s position, title, benefits or wages and document the legitimate non-discriminatory reasons underlying the action taken.
[i] An ‘adverse employment’ action refers to any action taken by an employer impacting the terms, conditions or privileges of employment (e.g., termination, undesirable transfer, reduction in hours, refusal to promote, unjustifiably bad performance review).
