Supreme Court Rejects Argument that Employee Must Show “Significant Harm” to Establish that a Job Transfer Constitutes an Adverse Action

Today, the U.S. Supreme Court issued its ruling in Muldrow v. City of St. Louis, unanimously holding that job transfers may give rise to a claim under Title VII of the Civil Rights Act of 1964 (“Title VII”) where the transfer results in some harm, even if the transfer does not result in “significant” harm. This decision resolves a federal circuit court split of authority. Some appellate courts have not required employees to show significant harm, while others have found that harm resulting from job transfers is too trivial to amount to an adverse action.  

Muldrow’s Factual Background
Jatonya Clayborn Muldrow, a former St. Louis police sergeant, alleged sex discrimination under Title VII[1] against the City of St. Louis, arising from her forced transfer out of the department’s intelligence division and into a patrol officer position. Muldrow claimed that she was transferred because she was a woman, and a new supervisor in the intelligence unit wanted a male officer in the position.

Before her transfer, Muldrow worked in plain clothes, worked a traditional and predictable schedule, had access to an unmarked FBI vehicle, FBI field offices, and databases, and was responsible for cases involving public corruption, gang violence, gun crimes, and human trafficking. After her transfer, Muldrow had to wear a police uniform, drove a marked police vehicle, worked a rotating schedule, which included weekends, and was responsible for administrative upkeep, supervising patrol officers, reviewing and approving arrests, and responding to homicides, robberies, assaults, and home invasions. She retained her same rank and pay, but she alleged she suffered an adverse action because she was transferred to a less prestigious role and lost material benefits as a result of the transfer.

The United States District Court for the Eastern District of Missouri granted summary judgment to the City, finding that Muldrow could not show a “significant” change in working conditions that resulted in a “material employment disadvantage.” Muldrow appealed, and the Eighth Circuit affirmed, finding that Muldrow’s transfer did not result in a “materially significant disadvantage” because the transfer “did not result in a diminution to her title, salary, or benefits” and the change in her job responsibilities was “insufficient” to support a Title VII claim.
 
The Supreme Court’s Ruling
The Court rejected the approach courts have used that required “a heightened threshold of harm.” The Court explained that the text of Title VII does not establish that high bar. Instead, the Court noted that the applicable language of Title VII prohibits discrimination with respect to terms or conditions of employment, and in this case, “discriminate against” means treating someone “worse” based on sex. The Court held that while a transferee “must show some harm” with respect to the terms and conditions of employment, the transferee is not required to show “significant” harm because the statutory language does not establish an “elevated threshold of harm.”

The Court remanded the case for further proceedings. It instructed the lower courts to “use the proper Title VII standard, and not demand that Muldrow demonstrate her transfer caused significant harm.”

Looking Forward

• Employers should continue to carefully monitor employment actions, including job transfers and re-assignments, to ensure decisions are not based on gender preferences (or other impermissible factors).
• Employers should identify any harm that may result from a job transfer or re-assignment and take steps to mitigate such harm.
• Employers should expect courts to apply the reasoning in Muldrow to other employment actions as well. For example, actions such as negative performance reviews, schedule changes, supervisor changes, or similar actions, could also cause harm that would constitute an adverse action.
• Employers should expect that those opposed to DEI programs will seek ways to use the ruling to attack DEI programs.  

[1] The plaintiff also brought a retaliation claim under Title VII and state law discrimination and retaliation claims against the city and the captain of the police department, but those claims were not before the Court.