On April 17, 2024, in Muldrow v. City of St. Louis, the Supreme Court resolved a split among the federal circuit courts over whether an employee challenging a job transfer under Title VII must meet a heightened threshold of harm to bring suit. Rejecting lower court decisions that required employees to show “material,” “serious,” “significant,” or “substantial” harm, the Court held that employees need only show that a job transfer caused them “some harm” with respect to an identifiable term or condition of employment. Importantly, the Court explicitly underscored three consequences of its decision.

• It changes the legal standard used in any Circuit that previously required a showing of “material,” “serious,” “significant,” or “substantial” harm.

• It lowers the bar that Title VII plaintiffs must meet.

• As a result, the Court expects that “many cases” will be decided differently.

Title VII states that it is unlawful for employers to “discriminate against any individual with respect to [their] compensation, terms, conditions, or privileges of employment.” According to the Court, the “terms [or] conditions” phrase is not used in a “narrow contractual sense” and covers more than the “economic or tangible” and “discriminate against” means “treat worse.” The statutory text, however, does not indicate how much worse or impose any sort of heightened harm bar.  Thus, the Court concluded that to establish a viable claim employees need only show that they suffered “some harm” to a broadly defined term or condition of employment.

The opinion, however, leaves an open question – what qualifies as “some harm” to an employee’s terms and conditions of employment? Or, as Justice Alito framed it in his concurring opinion, “I have no idea what this [new standard] means.”

While the Court does not define what “some harm” means, it does make clear that it does not mean “material,” “serious,” “significant,” or “substantial” harm. And, it seems clear that the “some harm” requirement is a low bar that does not, for example, require economic harm. In his concurrence, Justice Kavanaugh explains that he believes that anyone who has been transferred because of a protected trait “should easily be able to show some additional harm – whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.” 

Of course, even with this lowered standard, an employee still must prove that their employer took the challenged action because of the employee’s protected class. And, the Court acknowledged that minimally harmful actions may be less suggestive of intentional discrimination, and employees who suffer minimal harm have less incentive to pursue litigation.

We do not expect this decision to result in a flood of discrimination cases, but we do expect to see novel challenges to allegedly discriminatory employment actions that do not have a direct impact on employees’ pay and rank. Prudent employers should apply a discrimination analysis before implementing any adverse employment actions, even when the harm seems slight and intangible.

We will continue to monitor the developments in this area.