The U.S. Supreme Court opinion in Muldrow v. City of St. Louis, Missouri et al. says that an employee challenging a job transfer as discriminatory under Title VII must show that the transfer brought about some harm with respect to the terms or conditions of employment, but that harm need not be significant.
That finding means that more discrimination cases about seemingly minor job changes are likely to survive defense challenges and move forward to trial.
Over the next weeks and months, employment lawyers will be having conversations with corporate clients who will want to know what they need to look out for, and here’s the answer to that: the Court’s decision in Muldrow establishes a two-prong test for employers considering transferring an employee:
1. Will the transfer cause the employee to be worse off with respect to terms and conditions of employment?
2. Is the transfer based on (or could it be blamed on) a protected characteristic?
If the employee transfer in question can cross both of those hurdles, employers will want to proceed very carefully.
Some background on Muldrow is appropriate.
Police Sergeant Objects to Transfer as Discriminatory and Files Suit
As a sergeant in the intelligence division of the city of St. Louis police department, Jatonya Muldrow handled high-profile public corruption cases, oversaw the gang unit and was deputized to work with the local FBI unit. In her role, benefits included wearing plain clothes, working a predictable schedule, access to an unmarked FBI vehicle she could take home and a chance to earn up to $17,500 in overtime pay annually.
When a new captain assumed command of the intelligence division in 2017, he transferred Muldrow to a new role although her rank and pay remained the same. In her new role, Muldrow focused on administrative tasks, supervising patrol officers and responding to serious crimes like homicides. She also worked a rotating schedule (including weekends), wore a police uniform and used a marked police vehicle.
Muldrow filed suit claiming sex discrimination under Title VII, alleging that the transfer was an adverse employment action because her new position was more administrative and less prestigious than her role in the intelligence division. The district court granted summary judgment for the employer because Muldrow could not show that the transfer caused a “significant” change in working conditions, which would produce a “material employment disadvantage.” The Eighth Circuit affirmed the ruling on similar grounds, holding that Muldrow’s transfer did not result in a material employment disadvantage because her pay and rank remained unchanged, she still held a supervisory role, her duties included investigating important crimes and her new role did not harm her future career prospects. The Eighth Circuit specifically held that “an employee’s reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action.”
The Supreme Court Has Landed on “Some Harm” as the Standard
In resolving a circuit split over whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm, the Court put it simply: Title VII “targets practices that ‘treat[] a person worse’ because of sex or other protected trait.” The Court held that the text of Title VII imposes no heightened threshold of harm and requires only that a claimant show that the transfer brought about some “disadvantageous” change in an employment term or condition — not a significant, serious, substantial “or any similar adjective” that may suggest a heightened bar. Specifically with respect to an employee who is alleging a discriminatory transfer, “[t]o make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.”
The Court found that Muldrow’s allegations, if true, left her “worse off several times over.” The Court also listed other examples of transfers that left employees worse off and without recourse under the serious or substantial harm standard:
An engineering technician is assigned to work at a new job site — specifically a 14-by-22-foot wind tunnel.
A shipping worker is required to take a position involving only nighttime work.
A school principal is forced into a non-school-based administrative role supervising fewer employees.
The Court concluded that those employees suffered an injury with respect to their job conditions, but their claims were rejected based on an incorrect standard.
Employers Are Left to Consider Whether an Employment Action Leaves an Employee Worse Off
Beyond the two-prong test, an employee, of course, still must show that the transfer at issue is based on a protected characteristic, but employers should consider that more of these cases will survive summary judgment. Especially in the Fifth Circuit, where until recently employers could argue that an alleged adverse employment action like a transfer or an unfavorable schedule was not an “ultimate employment action,” employers should expect to see more plaintiffs survive dispositive motions with respect to discrimination based on the terms, conditions or privileges of employment.
For example, an employer that reassigns a female employee to a sales territory that is larger but harder to cover and less productive for sales will want to have a legitimate business reason for doing so. Likewise, an employer will need to document a good reason to subdivide a female sales representative’s very productive territory when the employer does not treat a similar male sales representative the same way. It is not hard to imagine an employee who is denied the same leadership training or other opportunities afforded to an employee who is not the same sex, race, religion, age group, etc. might attribute being “worse off” to discrimination.
To defend these cases, employers will want to ensure that decisions that leave an employee “worse off” were made for legitimate business reasons and not reasons connected to a protected characteristic.
Jennifer Trulock is a partner and Lauren Green is an associate in the labor and employment practice group at Bradley Arant Boult Cummings LLP’s Dallas office.