Executive Summary: Can an employer be sued by an employee for an alleged discriminatory transfer? The answer had been yes, so long as the transfer was based on a discriminatory reason and resulted in a “significant” employment disadvantage. That changed yesterday with the Supreme Court’s decision in Muldrow v. City of St. Louis, Missouri. In Muldrow, the Court rejected the “significant harm” test, for the more lenient “some harm” standard. In other words, to succeed on a discriminatory transfer claim under Title VII, an employee now must show only that “some harm” resulted.

Title VII of the Civil Rights Act of 1964, as amended, prohibits an employer from “fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise discriminate against any individual with respect to [their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” While transfer is not specifically mentioned in the language, courts nearly unanimously have held it falls within Title VII’s “otherwise discriminate” clause. Until yesterday, however, the severity of the harm required in most Circuits was generally that it had to be “significant.”

Background: In Muldrow, the plaintiff, Jatonya Clayborn Muldrow, was a plainclothes police officer employed by the St. Louis Police Department in its Intelligence Division. Because of this assignment, she had a regular Monday to Friday work week, was a deputized member of the FBI Task Force, had FBI credentials, and was granted a take-home car. A new commander replaced Officer Muldrow with a male officer, and Officer Muldrow was transferred to the patrol division. There, she was required to wear a uniform, no longer had a set schedule, and lost her FBI credentials, status, and car. She suffered no loss of wages or rank and remained a supervisor. Muldrow sued the city for gender discrimination based on her transfer. The District Court held that the harm suffered by Officer Muldrow was not “significant,” and granted summary judgment to the city. The Eighth Circuit affirmed, holding that because the transfer “did not result in a diminution to her title, salary, or benefits,” Muldrow did not suffer a “materially significant disadvantage.”

Supreme Court Decision: The Supreme Court granted certiorari “to resolve a Circuit split over whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm – be it dubbed significant, serious, or something similar.” In its opinion delivered by Justice Kagan, the Supreme Court rejected that there must be a “significant harm,” adopting a standard that a transfer must, instead, cause “some harm” to “an identifiable term or condition of employment.”

The Court began with Title VII’s language, specifically the terms “discriminate against” “with respect to” the “terms and conditions” of employment. The Court reasoned taken together, these terms require a litigant to prove differential treatment, i.e., worse treatment, that causes injury – one that is a “‘disadvantageous’ change in an employment term or condition.” Rejecting that harm must be “significant,” the Court noted Title VII does not use the word “significant,” nor does it quantify how “much worse” one must be treated to be protected by Title VII. Rather, only that it is “worse.” The Court further rejected that the harm suffered during a transfer must be equally significant as the harm caused by failing to hire or terminating an employee, that precedent requires a different conclusion, or that there is any public policy consideration – namely, increased litigation in the courts – that would trump Title VII’s plain language. In doing so, the Court clarified that irrespective of its holding, a litigant must still “show some injury,” that the injury “concern the terms and conditions of [] employment,” and that the employer “acted for discriminatory reasons.” As to the latter, the Court stressed that a less harmful act may not be suggestive of discriminatory intent.

Although Justices Thomas, Alito, and Kavanaugh concurred in the judgment, they criticized the majority’s decision. Most notably, Justice Alito characterized the majority’s opinion as “unhelpful” because it provides no guidance as to the meaning of “harm,” and the common meaning of “harm” – “physical or mental damage” – and “injury” – “an act that damages, harms or hurts; an unjust or underserved infliction of suffering or harm” – denotes “at least some degree of significance or substantiality.” In Justice Alito’s opinion, courts “will continue to do pretty must just what they have done for years,” unchanged by the holding in Muldrow. Justice Thomas agreed. Justice Kavanaugh’s concern lies in that the term “some harm” also is neither used nor defined by Title VII, and nearly any transfer will cause “some harm” that should meet the necessary standard, making the majority’s approach unnecessary.

The Bottom Line

Although decided under Title VII, Muldrow will be equally applicable to other federal anti-discrimination statutes, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act. Many employers, like St. Louis in Muldrow, have successfully defended lawsuits alleging discriminatory forced transfers with the argument that a transfer, absent a change is salary, benefits or other tangible employment benefits, is not actionable. Muldrow changes this, making it easier for employees to prove their forced transfer discrimination claims. Under Muldrow, the lesser and nontangible effects of transfer, such as a less favorable office, different work schedule, a new supervisor, or new work assignments, may now be actionable if they result in “some harm.” What Muldrow does not do, as pointed out by Justice Alito in his concurring opinion, is define the limits or meaning of “some harm.” While it remains to be seen if this decision will “open the flood gates” to discriminatory transfer claims, employers should expect increased motion practice over the meaning of “some harm” as the courts grapple with Muldrow’s effect and how to interpret this new standard.