The Supreme Court of the United States (“Supreme Court’) recently clarified the standard for claims brought under Title VII involving allegations of discrimination related to job transfers. Specifically, the Supreme Court held that employees only need to show “some harm” to the terms and conditions of their employment resulting from the transfer and unanimously rejected the “significant” harm standard followed previously by many Courts of Appeal.  It is likely that this clarification in the standard by the Supreme Court may facilitate employee challenges to workplace transfers and other actions impacting the terms and conditions of employment. 

Background of the case

For nine years, Sergeant Muldrow worked as a plainclothes officer in the Police Department’s specialized Intelligence Division. In that position, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. She was also deputized as a Task Force Officer with the FBI, which granted her FBI credentials and an unmarked take-home vehicle.  Her prior commander called her a “workhorse” and praised her work.

In 2017, however, a new commander took over, and he called her “Mrs.” instead of “Sgt.,” and allegedly asked to transfer her out of that unit so he could replace her with a male police officer who was a “better fit” for the Division’s “very dangerous” work.  Sgt. Muldrow was then reassigned to a uniformed job, where her “rank and pay remained the same, but her responsibilities, perks, and schedule did not: she was relegated to supervising the day-to-day activities of neighborhood patrol officers, no longer worked with high-ranking officials, lost access to an unmarked take-home vehicle, and had a less-regular schedule involving weekend shifts.” She then sued the Police Department over her transfer.

Legal Claims

Sgt. Muldrow brought suit under Title VII, which among other things makes it unlawful for an employer “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Sgt. Muldrow’s suit alleged that she was transferred to a lesser position because she is a woman, which the parties agreed implicated “terms” and “conditions” of her employment. Indeed, according to the Supreme Court, the allegations address “nothing less than the what, where, and when of her police work.”  Both the District Court and the Eighth Circuit Court of Appeals had dismissed Sgt. Muldrow’s claims, finding that she had alleged that many things had changed about her employment after the transfer, but that these were not “significant employment disadvantages.”

Supreme Court Analysis

In its decision, the Supreme Court rejected the “significant employment disadvantages” approach used by the Eighth Circuit, as well as similar standards used by many of the other Courts of Appeal requiring that the disadvantage(s) be “significant,” “material,” or “serious.”  For example, the Second Circuit, which reviews federal court cases brought in the State of Connecticut, New York, and Vermont, had previously required plaintiffs bringing similar claims to show a “material significant disadvantage” resulting from the transfer.  According to the Supreme Court, these heightened standards are not required by Title VII’s plain text nor Supreme Court precedent.  Instead of such a heightened standard, the Supreme Court announced that, “[t]o make out a Title VII discrimination claim, a transferee must [only] show some harm respecting an identifiable term or condition of employment.” (Emphasis added)  

The Supreme Court explicitly stated that the new standard “lowers the bar Title VII plaintiffs must meet,” and, “because it does so, many cases will come out differently” moving forward. Nevertheless, the Court highlighted that employers and courts have the ability to “dispose of meritless Title VII claims challenging transfer decisions,” e.g.:

• Does the injury complained of actually involve a term or condition of employment?
• Was the injury caused by conduct taken “because of” the employee’s sex, race, or some other protected characteristic?
• Is a less harmful act less suggestive of intentional discrimination in the given context?

In their concurring opinions, both Justices Alito and Kavanaugh disagreed with the majority concerning the potential impact of the change, suggesting instead that the Supreme Court’s new standard would not have that significant of an impact on transfer cases.  According to Justice Alito, for example, lower courts “will continue to do pretty much just what they have done for years” and dismiss meritless cases involving transfers.

Takeaways

While the justices disagree about the potential impact of the Supreme Court’s decision, with the majority believing many cases will come out differently and the concurring justices believing courts will continue to dismiss many cases, we wait to see how lower courts in fact treat transfer cases moving forward under Muldrow. 

Below are some key takeaways for employers to consider moving forward:

• Many discrimination cases arise based on changes made by new managers or supervisors. Often times, the changes can be justified—e.g., maybe the prior manager was not holding employees accountable for their work. Sometimes, however, they cannot, such as in this case where Sgt. Muldrow alleged that the transfer was based on her sex and sex-based stereotypes about who should perform “dangerous” work.  Employers should pay close attention to changes made by new supervisors or managers.
• The Muldrow case was based on a job transfer and the loss of certain perks related to the prior position, but moving forward plaintiffs may attempt to use the Supreme Court’s reasoning to challenge other types of changes to working conditions, even without a transfer.  For example, plaintiffs may challenge changes to schedules, the type of work performed, or removal of job-related perks such as the assigned car in the Muldrow case.   Therefore, employers should assure that all such changes are based on legitimate reasons, and not made on the basis of sex, race, or any other protected class.