In the Tenth Circuit, courts have long required employees alleging Title VII discrimination arising from a job transfer to show they suffered “significant harm” as a result of the job change. Yesterday, the U.S. Supreme Court threw that “significant harm” standard out the window in Muldrow v. City of Saint Louis. Now, an employee need only show that a job transfer causes “some harm” to make a Title VII discrimination claim. Employers should now be more cautious when transferring employees to different jobs and should expect more charges and litigation related to transfers.

Female police officer sues department after job transfer

Sergeant Jatonya Clayborn Muldrow served on the St. Louis police force. For many years, she worked as a plain clothes police officer who oversaw the Gang Unit, held other leadership positions, and was afforded certain job perks in her role. For example, she had FBI credentials that authorized her to have a take-home vehicle and pursue investigations outside of St. Louis.

Later, a new division commander decided to move Sgt. Muldrow to a uniformed officer position against her wishes. The new commander would sometimes call Sgt. Muldrow “Mrs.” rather than “Sergeant” and replaced her with a male officer whom he felt was a better fit for the “very dangerous” work. While Sgt. Muldrow remained in the same rank and pay, her job responsibilities, perks, and schedule changed. For example, her new role required her to work more weekend shifts, she no longer had a take-home vehicle, she did not work with high-ranking officials, and her work now involved more routine police duties.

Sgt. Muldrow alleged that the transfer violated Title VII and discriminated against her sex with respect to the “terms and conditions” of her employment. She argued that she was moved from a “premier” or “prestigious” position in the department to a much more routine and administrative role with fewer opportunities for advancement. Further, she no longer had a take-home car and had a more uncertain work schedule.

The district court and the Eighth Circuit Court of Appeals held that the job changes were not material or significant enough for her to allege a Title VII claim because there was no change to her title, salary, or benefits. The U.S. Supreme Court granted certiorari and disagreed.

The decision

Focusing on the plain language of Title VII, the U.S. Supreme Court vacated the appeals court’s decision and sent the case back to the district court because it held it used a heighted standard of showing a significant, serious, or material harm and Sgt. Muldrow may not have had adequate proof of her alleged harms. The high court ruled that nowhere in the language of the statute did there appear to be any requirement for showing some type of substantial harm. But the court did not go as far as Sgt. Muldrow requested, which was to argue that she need not show any harm. Rather, the court ruled that a Title VII plaintiff who complains of a job transfer must show “some harm” respecting an identifiable term or condition of employment.

The takeaway

In light of this new SCOTUS decision, employers should now be much more cautious when deciding whether to transfer employees, particularly if there are circumstances where an employee could make a discrimination claim. Examples of where an employee might be able to show “some harm” include changes in a schedule from working days to nights, or working weekdays to weekends. It could also include a change in the scope of supervisory duties or the ability to advance.

Employers should also remember that this case only lowers the ability for an employee to make a claim, not to win one. In other words, even if a transfer could now be the basis for making a Title VII claim, if an employer treats all employees the same and would have made the same decision without regard to any protected characteristics, the employer can still win. To that end, employers clearly identify the business reasons for the transfer and review their records to understand how they have treated other similarly situated employees in the past. They should also make sure they are following all policies in place when transferring an employee.

Finally, it will be difficult for employees to show damages for an allegedly discriminatory job transfer when there is no monetary harm, such as a change in pay. In some situations, employers may be able to deter, weaken, or even defeat claims simply by moving an employee back to the original position.

Muldrow v. City of St. Louis, Missouri, et al., 601 U.S. ___(2024)