On December 6, 2023, the Supreme Court heard oral argument in Muldrow v. City of St. Louis, a Title VII case out of the Eighth Circuit.^[1] The petitioner, Sergeant Jatonya Muldrow of the St. Louis Police Department, alleged sex discrimination in violation of Title VII when she was transferred from the Intelligence Division—and a prestigious position as a Task Force Officer with the FBI office in St. Louis—to the Fifth District. In this new role, she was responsible for the administrative upkeep and supervision of officers on patrol as well as responding to calls for robberies, assault, homicide, and home invasion, and reviewing and approving arrests.^[2]

The Eighth Circuit affirmed summary judgment for St. Louis, holding that Muldrow’s transfer did not constitute an adverse employment action, and thus her injury was not cognizable under Title VII. Under current precedent, a plaintiff asserting discrimination must show discrimination with respect to the terms, conditions, or privileges of employment.^[3] Most circuits have held that the discrimination must rise to the level of a materially adverse employment action or tangible employment action.^[4]

The Supreme Court then granted Muldrow’s petition for a writ of certiorari. The court’s grant was limited to the question of whether “Title VII prohibit[s] discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage.”^[5] At oral argument, some justices appeared favorable to Muldrow’s argument that any differential treatment or decision made in the workplace based on a protected characteristic was a recognizable injury under Title VII—a position also supported by the Solicitor General.

Though a favorable decision from the Supreme Court may be limited to workplace transfers like Muldrow’s, the implications from a lowering of the harm requirement under Title VII—which prohibits employment discrimination based on race, color, religion, sex, and national origin—are perhaps further reaching. For example, questions from Justices Clarence Thomas and Amy Coney Barrett at oral argument suggested that a lower harm threshold could implicate workplace diversity initiatives.^[6]

The justices’ questions recalled aspects of Students for Fair Admissions v. Harvard College (SFFA),^[7] a case from last term in which a majority of the court voted to end race-conscious college admissions. While SFFA applied only to college admissions, the holding was based on Harvard’s violation of both the Equal Protection Clause and Title VI of the Civil Rights Act.^[8] Justice Gorsuch noted in his concurrence to SFFA that “Title VII” sits “[j]ust next door” to Title VI, advocating for a “categorical rule of ‘individual quality, without regard to race.’”^[9] The court noted the existence of a safe harbor for university admissions that consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”^[10]

Muldrow could be the case that takes the underpinnings of SFFA and applies them in the employment context. This could yield a result where the court holds that any discrimination in the terms, conditions, or privileges of employment based on a protected characteristic constitute discrimination, even when such treatment is benign, under Title VII. Depending on the outcome of Muldrow, the threshold injury requirement may affect what companies can or cannot do in their diversity initiatives.

[1] Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022), cert. granted in part, 143 S. Ct. 2686 (2023).

[2] Muldrow v. City of St. Louis, No. 4:18-CV-02150-AGF, 2020 WL 5505113, at *2 (E.D. Mo. Sept. 11, 2020).

[3] Hamilton v. Dallas County, 79 F.4th 494, 505 (5th Cir. 2023) (en banc).

[4] See id. at 505 n.62 (collecting cases from various circuits). Notably, the Fifth Circuit in Hamilton left for another day what standard should apply but held that Title VII “does not permit liability for de minimis workplace trifles.” Id. at 505.

[5] Muldrow v. City of St. Louis, 143 S. Ct. 2686 (2023).

[6] Transcript of Oral Argument at 17–18, 44–45, Muldrow v. City of St. Louis (22-193). Supremecourt.gov. Retrieved at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-193_8nk0.pdf.

[7] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).

[8] Id. at 230.

[9] Id. at 290 (quoting Regents of Univ. of California v. Bakke, 438 U.S. 265, 416 n.19 (1978) (Stevens, J., concurring)).

[10] Id. at 230.