On December 6, 2023, the Supreme Court of the United States (SCOTUS) heard arguments in Muldrow v. City of St. Louis, Missouri—a potentially pivotal case concerning whether Title VII requires plaintiffs to establish a “materially adverse” employment action, “objective tangible harm,” or an “ultimate employment decision” to state a viable discrimination claim. If, as we suspect, SCOTUS dispenses with this requirement, the number of disparate treatment claims under Title VII may drastically increase, and certain diversity initiatives may be called into question.
Background
Muldrow, a segreant with the St. Louis Metropolitan Police Department, was transferred from one position to another and denied another transfer, allegedly because of her sex. Significantly, these transfer decisions did not cause Muldrow to suffer any change in pay, benefits, rank, working conditions, or career prospects. In affirming the district court’s decision to grant summary judgment to Muldrow’s employer, the Eighth Circuit had held that these transfer decisions did not state a viable claim under Title VII because they did not involve any materially adverse employment consequence.
Circuit Split
After the Eighth Circuit’s decision, two other circuit courts—the D.C. Circuit and the Fifth Circuit— reached an essentially different result, expressly rejecting that plaintiffs seeking relief under Title VII must prove a “materially adverse” or “ultimate employment” action. In Chambers v. District of Columbia, the en banc panel of the D.C. Circuit held that “[o]nce it has been established that an employer has discriminated against an employee with respect to that employee’s ‘terms, conditions, or privileges of employment’ because of a protected characteristic, the analysis is complete.” An en banc panel of the Fifth Circuit likewise held in Hamilton v. Dallas County that “we have long limited the universe of actionable adverse employment actions to so-called ‘ultimate employment decisions.’ We end that [interpretation] today.”
It was against the backdrop of this Circuit split that SCOTUS heard arguments in Muldrow.
Oral Argument Highlights
Muldrow argued that the plain language of Title VII requires only that a plaintiff show discrimination as to a term, condition, or privilege of employment, and does not further require any “materiality” showing:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.
Muldrow further argued that the phrase “discriminate against” in Title VII simply means “to make a difference in treatment or favor of one as compared to others.” Because the transfer decisions were made on the basis of her sex, Muldrow maintained she was “discriminated against” in violation of Title VII, despite not being able prove any additional injury. The United States Department of Justice, as amici, embraced this position and advanced similar arguments.
Conversely, Muldrow’s employer maintained that in order to be “discriminated against” within the meaning of Title VII, an individual must have suffered a “significant material objective harm.” According to the City, Congress “does not legislate as to trifles” and did not do so in enacting Title VII. And, because the transfer decisions in Muldrow did not inflict harm, the City argued that Muldrow’s claims were properly dismissed by the Eighth Circuit.
The multiple questions posed by a wide variety of Court Justices to Muldrow, the Department of Justice, and to the City of St. Louis, indicate, at least to us, that a majority of the Court will agree with Muldrow. Justice Jackson may have captured this sentiment best, in having Muldrow’s counsel agree that, quite simply, employment discrimination plaintiffs “have to prove no injury other than the discrimination itself.”
Implications for Employers and for Inclusion, Equity & Diversity Initiatives
If SCOTUS holds that plaintiffs are not required to show an “ultimate employment decision,” “objective tangible harm,” or “materially adverse action” to state a disparate treatment claim under Title VII, employers are likely to be subject to many more claims than they had in the past when such showings had been required by the courts.
Justice Jackson suggested that this potential increase in claims would effectively be limited by plaintiffs being unable to recover any damages if they proved no financial or other harm. Justice Alito relatedly signaled that Title VII may still be read to include a “de minimis” exception to actionable claims, a suggestion with which counsel for the government agreed.
Further, the Court seemingly indicated that plaintiffs bringing hostile work environment claims would still have to prove “severe or pervasive” harassment. Such a requirement would be needed, several Justices suggested, in order to prove that an actual “term or condition” of employment had been impacted by the harassment, and to hold employers liable for harassing conduct.
Moreover, even if the Court did hold that disparate treatment claims may lie essentially any time any differential treatment in the workplace occurs due to a protected characteristic, several Justices seemed to suggest that there nevertheless may be discrete employment acts that fall outside of Title VII’s ambit. Oral argument posited that those acts may include such things as gender-specific bathrooms and differing grooming codes and uniform requirements.
Finally, it is possible that Muldrow will cause even greater scrutiny of diversity initiatives than occasioned by the Supreme Court’s recent affirmative action decisions. While diversity initiatives were not directly before the Court, if SCOTUS indeed holds that virtually any employment decision that affects a term, condition or privilege of employment is actionable, workplace diversity initiatives that are open only to certain races or genders may well give rise to claims under Title VII.
