Last week, a unanimous US Supreme Court held that an employee need only show “some harm” from a change in the terms and conditions of employment, rather than a “significant” employment disadvantage, to assert a claim for discrimination under Title VII. The decision resolves a circuit split over the showing required for discrimination claims based on changes less drastic than demotions, terminations, or pay reductions, and underscores the continued importance of taking a thoughtful approach to any change in the terms and conditions of an employee’s employment.
In Muldrow v. City of St. Louis, Missouri, the question before the Court was whether Title VII prohibits discrimination in transfer decisions where the transfer does not result in a materially significant disadvantage. Thus, while the Court’s decision addressed the “injury” necessary to pursue a claim, the Court did not review or alter the requirement that plaintiffs in Title VII cases also must plead and prove discriminatory treatment — that the employer treated the employee worse “because of” the plaintiff’s protected characteristic, such as race or sex.
Link to Background Background
Plaintiff worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division from 2008 to 2017. In 2017, the new Intelligence Division commander asked to transfer plaintiff out of the unit so he could replace her with a male police officer. Against her wishes, the Department approved the request and reassigned her to a uniformed job elsewhere in the Department. While plaintiff’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not, and in plaintiff’s view, the transfer resulted in a less favorable schedule and a loss of status and prestige, among other things.
Plaintiff brought a Title VII suit to challenge the transfer. She alleged that the City, in ousting her from the Intelligence Division, “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. The lower courts, adopting the reasoning of the First, Second, Fourth, Seventh, Eighth, Tenth and Eleventh Circuits, rejected the claim on the ground that the transfer did not cause any “significant” employment disadvantage.
The Court’s majority opinion (authored by Justice Kagan) rejected that “high bar,” adopting instead the reasoning of the DC Circuit, and finding that although an employee must show “some harm” from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test. Looking to the language of Title VII itself, the Supreme Court held that the statute makes no reference to a significance standard, and thus remanded the case for further proceedings consistent with the Court’s decision.
Link to Takeaways for Employers Takeaways for Employers
- By lowering the bar for pleading discrimination claims under Title VII, Muldrow opens the door to an increase in claims based on job actions that employees view as undesirable. As such, employers should train HR and supervisors on the new standard, and be prepared to investigate employee claims of discrimination, even if those claims are not tied to tangible employment disadvantages, but to discomfort or loss in status.
- Some commentators have suggested that the unanimous decision and Justice Kavanaugh’s concurrence may encourage more challenges to DEI programs. Kavanaugh wrote that “any” job transfer based on a protected trait should already be actionable under Title VII, so requiring plaintiffs to show “some harm beyond the harm of being transferred on the basis of race, color, religion, sex, or national origin” is an additional showing that Title VII does not require. As such, it is conceivable that the decision will be weaponized by those seeking to dismantle DEI programs like leadership development or training programs intended for underrepresented minorities. Indeed, America First Legal’s general counsel has already announced it is factoring the ruling into its strategy.
- As discussed here, new contours in the DEI landscape are emerging, requiring employers to keep their eyes on the ball. Given the changes, employers should consider a privileged review of DEI programs to de-risk their goals for workforce representation, talent pipelines, and supportive programs for all employees (among other things).
We are happy to share our “due diligence” checklist with clients to help initiate a targeted audit to prioritize a review of the most vulnerable areas. Contact your Baker McKenzie employment attorney.