If you transfer an employee to a job with no loss in pay or title but the employee thinks it is less desirable, can that employee sue you for discrimination under Title VII? While it depends on the facts, in Muldrow v. St. Louis, the U.S. Supreme Court held that an employee challenging a job transfer must show only some harm, not significant harm, not material disadvantage, and not any other adjective beyond some harm. The ruling is likely to result in increased Title VII cases for job transfers where the employee believes the new position is disadvantageous.
Background
We previously blogged about this case as it was teed up before the Supreme Court. To refresh your memories, Jatonya Muldrow was a police officer for the St. Louis Police Department who was transferred to a new position. The transfer did not significantly change her pay or benefits. Muldrow’s “rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not” as she “no longer worked with high-ranking officials,” and she also did not have a vehicle and had a less-than-regular schedule on weekends.
The district court granted the city’s motion for summary judgment and the Eighth Circuit affirmed, holding that Muldrow could not show a “materially significant disadvantage” with her transfer, a standard that other circuit courts had relied on as well.
Supreme Court Findings
Title VII prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex. The opinion established the following standard:
“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. What the transferee does not have to show … is that the harm incurred was ‘significant’ or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”
In the Court’s view the plain language of “discriminate against” means treat worse based on sex, and the phrase does not require an elevated threshold of harm:
“‘Discriminate against’ means treat worse, here based on sex. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand ‘significance’ is to add words—and significant words, as it were—to the statute Congress enacted.”
The Court chronicled specific job transfer cases that were previously dismissed by federal circuit courts “solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.”
The city argued that there was an implicit threshold of “significance” to any harm, but the Court rejected all of the city’s contentions. One of the city’s main arguments was that without some threshold of a significant-injury requirement transferred employees would swamp courts and employers with lawsuits. The Court rejected that point and said that “courts retain multiple ways to dispose of meritless Title VII claims” and even if the courts were to be flooded it was a result of the statute that Congress drafted.
Muldrow alleged that the city transferred her to a lesser position because she was a woman. If there was some harm, even if not “significant,” the lower court’s dismissal of the claim was improper. The Court remanded the case back to the district court.
Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh each authored separate concurring opinions, taking issue with the majority’s conclusion. Justice Thomas described there needing to be “more than a trifling harm.” Justice Alito said he could not join “the Court’s unhelpful opinion” and that Title VII cases for decades have held that “not every unwanted employment experience affects an employee’s ‘terms’ or ‘conditions’ of employment.” He went on to say that “I have no idea what [the majority’s opinion] means, and I can just imagine how this guidance will be greeted by lower court judges.” And according to Justice Kavanaugh, “the issue here is not complicated” and that he “disagree[d] with the Court’s new some-harm requirement … as the text of Title VII does not require a separate showing of some harm. The discrimination is the harm.” But he concluded that the new some-harm requirement “appears to be a relatively low bar” and anyone who has been transferred based on a protected category “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.”
Big Takeaway
This is certainly a significant decision that changes the risks associated with transfer decisions that do not affect pay. Employers should take note of the low standard in making transfer decisions. It will not take much for job transfer discrimination claimants to have a viable case, so make sure you are evaluating those decisions like you would termination or promotion decisions.