Lowering the Bar: Unlawful Discrimination Can Exist Absent a Showing of “Significant” or “Serious” Harm

Title VII makes it unlawful — in relevant part — for an employer to “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.” Because an involuntary transfer may implicate, for example, an employee’s “terms” and “conditions” of employment, the Court held Title VII prohibits discriminatory job transfers.

In Muldrow, the employee, a Sergeant in the St. Louis Police Department, alleged that she was transferred from her position as a plainclothes officer in the Intelligence Division to a position as a uniformed officer supervising patrol officers because of her sex in violation of Title VII. As a result of the transfer, she went from (a) working in a “premier” position in which she investigated public corruption and human trafficking cases, oversaw the Gang Unit, worked with high-ranking officials, and had other benefits such as a predictable Monday–Friday schedule, FBI credentials, and an unmarked take-home vehicle, to (b) working in a position in which she supervised neighborhood patrol officers, approved arrests, reviewed reports, performed other administrative tasks and patrol work, had to work occasional weekend shifts, and lost her FBI credentials and take-home car. The district court, applying Eighth Circuit precedent, explained that Sergeant Muldrow “needed to show that her transfer effected a ‘significant’ change in working conditions producing a ‘material employment disadvantage’” and concluded that the changes Sergeant Muldrow identified were minor and insignificant, emphasizing that her salary and rank were unchanged. The district court accordingly granted summary judgment in favor of the City. The Eighth Circuit affirmed, similarly holding that the transfer did not cause a “materially significant disadvantage.”

The question before the Supreme Court was whether (as the Eighth Circuit and several other — but not all — U.S. circuit courts had decided) Title VII requires “an employee challenging a transfer” to meet a “heightened threshold of harm—be it dubbed significant, serious, or something similar.”

In reversing the Eighth Circuit, the Supreme Court held that while the phrase “discriminate against” in Title VII means “treat worse” and thus requires a transferee to show that the “transfer brought about some ‘disadvantageous’ change in an employment term or condition,” nothing in Title VII requires the transferee to show that the transfer “left her significantly [worse off].” Under this lower standard, the Supreme Court held that Sergeant Muldrow’s allegations, if proven, show that the transfer “left [her] worse off several times over” and that it did not matter, “as the courts below thought . . . , that her rank and pay remained the same, or that she still could advance to other jobs.”

The Muldrow decision did acknowledge a distinction with respect to Title VII retaliation claims, which do require a showing of significant harm in order to be successful.

After Muldrow, it may be easier for employees to prove unlawful discrimination in connection with a change to their terms, conditions, and privileges of employment. This case thus serves as an important reminder to employers to be mindful of the need for clear legitimate business reasons supporting all decisions that impact an individual’s employment.