SCOTUS Issues Highly Anticipated Muldrow Decision, Rejecting Heightened Harm Requirement in Adverse Action Analysis

Seyfarth Synopsis: The United States Supreme Court issued its opinion in one of the most anticipated employment cases of this term. In Muldrow v. City of St. Louis, the Court considered whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate showing that the transfer caused a “significant” harm. In its opinion, the Court rejected this heightened harm requirement, which will have profound effects on Title VII litigation, and on the way employers think about related areas such as their DEI programming.

Background

Plaintiff Jatonya Muldrow is a sergeant in the St. Louis Police Department. She was promoted to the Department’s Intelligence Division, where her work included at various times public corruption and human trafficking cases, serving as head of the Gun Crimes Intelligence Unit, and overseeing the Gang Unit. At one point, she also was deputized as a Task Force Officer to work with the Federal Bureau of Investigation (FBI) with the same privileges as an FBI agent. In 2017, an interim police commissioner implemented various personnel changes and Muldrow was laterally transferred to a supervisory position outside of the Intelligence Division. While the lateral transfer resulted in changes to her schedule, uniform, vehicle and included more administrative responsibilities, she did not claim that the changes themselves caused her a significant disadvantage. Less than two weeks after her transfer, Sergeant Muldrow filed a charge with the EEOC, alleging the transfer was motivated by sex discrimination.

The Lower Court Decisions

The City moved for, and was granted, summary judgment by the district court. The court found that Muldrow failed to show an element of her prima facie claim: that her involuntary transfer was not an “adverse employment action” because it did not result in salary or benefit changes, nor did her responsibilities significantly change. Her criticisms that the new role included less networking opportunities, required her to work in uniform, and sometimes required weekend shifts were unavailing. This simply amounted to a preference for one job over another, rather than showing how she was materially disadvantaged by the transfer. 

Muldrow appealed. The Eighth Circuit Court of Appeals affirmed the lower court’s decision noting that:

• Lateral transfers, without proof of related harm, are not actionable under Title VII; and
• A contrary holding would otherwise permit minor personnel decisions to form the basis of discrimination suits.

Muldrow then petitioned the U.S. Supreme Court for review. The Court agreed to hear the case for the narrow purpose of answering whether Title VII prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?

The Supreme Court’s Opinion

The Supreme Court held that a plaintiff need only show that their transfer brought about “some” harm with respect to a term or condition of employment. The Court focused on Title VII’s language prohibiting “discriminat[ing] against” an individual with respect to the “terms [or] conditions” of employment because of that individual’s sex. Because discrimination requires differential treatment that injures, Title VII still requires evidence of harm. However, the Court expressly rejected that the harm suffered must have been “significant or otherwise exceeded some heightened bar.” In other words, to discriminate simply means to treat worse. Other key takeaways from the Court’s opinions include:

• Applying its reasoning to transfer decisions, the majority noted in its opinion that “[m]any forced transfers leave workers worse off” with respect to the terms or conditions of employment. And even in the absence of changes in pay or title that did not affect future career prospects, a transfer decision may still be actionable under Title VII. As such, the Court vacated the circuit court’s judgment and remanded the case for further proceedings consistent with its opinion.
• Justices Thomas, Alito, and Kavanaugh each filed concurring opinions to the judgment. Justice Thomas agreed with the Court’s description of the standard plaintiffs must satisfy when alleging violations of Title VII. However, he suggested that even under this standard, Muldrow’s claim should fail. In his view, Muldrow failed to prove there was anything harmful about her transfer, as she only complained that the position was more administrative and lacked prestige.
• Justice Alito also issued a concurrence, characterizing the Court’s opinion as “unhelpful” and shared that he has “no idea” how the guidance will be interpreted by lower court judges. Instead, he believes lower court judges will simply be mindful of their verbiage and continue their normal practices.
• Justice Kavanaugh expressed concern with the Court’s requirement for plaintiffs to show “some” harm. The Justice noted that any transfer decision based on a protected characteristic violates Title VII and requiring a showing of some harm goes too far.
• The Court appeared unconcerned that courts might now be burdened with meritless claims, noting that the “injury” requirement itself is a sufficient barrier to exclude such claims.

What This Means for Employers

It has long been recognized that Title VII is not intended to regulate morality, nor does it even proscribe all discrimination; rather, it prohibits discrimination only as to compensation, terms, conditions, or privileges of employment. Most courts have interpreted this limitation to mean that actionable discrimination requires a materially adverse employment action. The Muldrow decision lowers the bar to establish such adversity, which will only increase the scope of activity prohibited by Title VII. The import of this decision is therefore not limited to transfers, which was Muldrow’s subject matter. It will impact all questions of material adversity going forward.  But at least this decision does not eliminate that requirement altogether, as some plaintiffs’ counsel and the EEOC have argued for. Whatever new line of “adversity” was drawn by this decision—i.e., something material, but not necessarily significant; a non-trifling harm, but not a substantial one—will undoubtedly be difficult to discern. But at least it keeps the focus on employees’ conduct, rather than the unpoliceable zone of their thoughts and intentions.

While the Muldrow decision focused on a transfer decision, it may have a broader reach to other types of workplace conduct, including DEI programs and initiatives. Before the Muldrow decision, it was believed that many DEI initiatives did not implicate Title VII liability as there was no “significant” harm or disadvantage. For instance, non-selection or lack of access to a DEI-related training that otherwise had no link to a promotion decision presented a considerable hurdle to a successful “reverse” discrimination claim.

However, the lower Muldrow threshold—i.e., that plaintiffs now simply must show they were harmed by non-selection into the DEI opportunity—could make it easier for plaintiffs opposing such programs to bring claims under Title VII.  Of course, there are a number of other defenses at employers’ disposal regarding their DEI programming processes. But it would be wise going forward for businesses to carefully scrutinize their DEI initiatives’ application or selection processes, and any decisions coming from those processes with an eye towards the principles articulated in the Muldrow decision.

In Summary

The Court’s opinion is a marked change to the long-standing framework used by courts across the nation in assessing Title VII’s injury requirement. Employers should be mindful of the increased risk posed by making lateral transfers given this new framework. It also begs the question of whether this opinion will be used by courts—and plaintiffs—outside the transfer context to assert claims that would have previously been considered meritless.

Seyfarth will continue to monitor these developments. Should you have any questions, please contact a Seyfarth attorney.