US Supreme Court Adopts More Lenient “Some Harm” Standard in Title VII Cases Involving Transfers

On April 17, 2024, in the case of Muldrow v. City of St. Louis, Case No. 22-193, 601 U.S. ______ (2024), the United States Supreme Court issued a decision that lowers the level of harm that plaintiffs in a Title VII discrimination claim must show they suffered from the employer’s decision to transfer them. Specifically, the Supreme Court held that Title VII prohibits discriminatory job transfers where the transfers cause “some harm”, regardless of whether that harm is considered significant or not with respect to an identifiable term or condition of employment. In so doing, the high court resolved a Circuit split regarding whether the harm has to be “of significance,” “material” or “serious,” as held by several Circuits, including the 1st, 2nd, 4th, 7th, 8th, 10th and 11th Circuits.

Muldrow v. City of St. Louis: The Case

The Plaintiff, Jatonya Clayborn Muldrow, worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division from 2008 to 2017. In 2017, a new Intelligence Division commander asked the Department to transfer Muldrow out of the unit and replace her with a male police officer. The new commander sometimes called Muldrow “Mrs.” rather than the customary “Sgt.” and believed that the male officer was a better fit for the division’s “very dangerous” work. Muldrow alleged that she was transferred because she is a woman.

While Muldrow’s rank and pay remained the same in the new position, her responsibilities were reduced. Specifically, she now supervised the day-to-day activities of neighborhood patrol officers instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division. Muldrow was also asked to engage in patrol work herself, a task she had not been expected to perform for several years in her previous role. Further, as a member of the Intelligence Division, she had been assigned to a task force with the Federal Bureau of Investigation (FBI), which granted her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis. When she was transferred out of the Intelligence Division, Muldrow lost her status with the FBI. The change of jobs also made Muldrow’s workweek less regular. While she had previously worked a traditional Monday-to-Friday workweek, Muldrow was now placed on a rotating schedule that often required working weekends.

Muldrow filed suit in the United States District Court, alleging that her transfer constituted sex discrimination under Title VII. The District Court held the transfer did not affect a significant change in working conditions and that Muldrow could not show “significant” harm as a result of her job transfer or a “significant” change to the terms and conditions of her employment. The 8th Circuit Court of Appeals affirmed, defining “significant” as requiring Muldrow to show that the transfer caused a “materially significant disadvantage.” Muldrow subsequently appealed to the United States Supreme Court.

Implications of the Opinion Issued

The Supreme Court’s opinion, which was delivered by Justice Kagan, rejected the “significant harm” approach adopted and promulgated by the lower courts. Specifically, the Supreme Court held that “[t]o make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment” but that the statute did not require any significant, serious, or substantial harm. Applying this standard to Muldrow’s case, the Supreme Court stated she only needed to show “some injury respecting her employment terms or conditions” and that the transfer had left her “worse off”, but not necessarily “significantly so.” However, the Supreme Court declined to find whether Muldrow satisfied the standard and remanded the case to the District Court for further proceedings, but did hold that if Muldrow’s allegations were properly preserved and supported, she had shown that the transfer did, in fact, cause “some injury” to the terms and conditions of her employment.

This decision’s “some harm” standard is new and will very likely result in more Title VII litigation, because it sets “a relatively low bar,” as Justice Kavanaugh wrote in a concurrence. For employers, the decision entails that proposed transfers or relocations that may not have seemed significant or particularly harmful before should now be closely scrutinized. The scrutiny should not stop at whether there is a reduction in salary or other obvious consequences, but should also assess whether the employment action potentially involves undesirable outcomes or conditions, such as less responsibility or undesirable hours.

Consult with an employment attorney at MWH Law Group regarding any questions or concerns related to these issues.