On April 17, 2024, the United States Supreme Court ruled on the standard under which a plaintiff can proceed with a claim for a discriminatory job transfer under Title VII of the Civil Rights Act of 1964 (“Title VII”), holding that a plaintiff need only show that the transfer brought about “some” harm with respect to an identifiable term or condition of employment, but that the harm need not be “significant.” The decision in Muldrow v. City of St. Louis, 601 U.S. ___ (2024), now supersedes the heightened harm threshold tests that some Circuits, such as the Eighth and Third, have used to determine whether a job-related action is harmful enough to sustain a claim.

In Muldrow, the plaintiff, Sergeant Jatonya Clayborn Muldrow, worked as a plainclothes officer in the Intelligence Division of the St. Louis Police Department from 2008 through 2017 until she was reassigned to a uniformed job elsewhere in the Department and replaced with a male officer. Although Muldrow’s rank and pay remained the same, her responsibilities, perks, and schedule did not. Muldrow no longer worked with the high-ranking officials in the Department’s Intelligence Division—instead supervising the day-to-day activities of neighborhood patrol officers—and she lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts. Muldrow brought suit under Title VII, challenging the transfer as a discriminatory action based on her sex.

The District Court for the Eastern District of Missouri granted summary judgment to the City, and the Eighth Circuit affirmed, holding that Muldrow had to, but could not, show that the transfer caused her a “materially significant disadvantage.” The Circuit Court explained that the transfer “did not result in a diminution to her title, salary, or benefits” and had caused “only minor changes in working conditions.”

The Supreme Court rejected the standard employed by the Eight Circuit, explaining that to make out a Title VII discrimination claim, a transferee must show some harm with respect to an identifiable term or condition of employment, but what the transferee does not have to show is that the harm incurred was “significant” or otherwise exceeded some heightened bar. Title VII prohibits employers from “discriminat[ing] against” an individual with respect to the “terms [or] conditions” of employment because of that individual’s sex. Citing the Court’s own precedent in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) and Bostock v. Clayton County, 590 U.S. 644 (2020), the Court explained that to “discriminate against” means to “treat worse.” Since there is no statutory language that establishes an elevated threshold of harm, “to demand ‘significance,’” the Court went on, “is to add words…to the statute Congress enacted” and “impose a new requirement…so that the law as applied demands something more of [a Title VII claimant] than the law as written.” Rather, according to the Court, the statutory language merely requires a plaintiff to show that a transfer brought about some “disadvantageous” change in an employment term or condition. Noting that Muldrow’s allegations easily met the appropriate standard, the Court vacated and remanded the case.

Justices Thomas, Alito, and Kavanaugh each filed an opinion concurring in the judgment. Of particular interest is Justice Alito’s concurrence, in which he determined that the plaintiff could prevail on her claim if she could prove that she was transferred because of her sex because, assuming the facts as true, plaintiff’s transfer altered the “terms” or “conditions” of her employment. Justice Alito, however, refused to join the Court’s “unhelpful opinion,” which, as he described it, instructs Title VII plaintiffs that they must show that the event they challenge constituted a “harm” or “injury,” but that the event need not be “significant” or “substantial.” Justice Alito indicated that he sees “little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like,” predicting that lower courts will merely word their opinions more carefully in the future but continue to analyze Title VII claims in the same way they have done for years.

Justice Thomas noted his agreement with Justice Alito’s concurrence and added that the Court may have mischaracterized the Eighth Circuit’s decision as imposing a heightened-harm requirement when, in fact, the standard the Circuit actually applied aligned with the one announced by the Court.

Finally, Justice Kavanaugh agreed with the Court that a transfer need not cause “significant” employment disadvantage to be prohibited by Title VII, but he disagreed with the Court’s holding that a plaintiff must show “some harm.” Rather, for Justice Kavanaugh, the analysis is simple: a transfer changes the terms, conditions, or privileges of employment, and if an employee was transferred on the basis of a protected characteristic, that employee has been treated differently because of that characteristic and therefore has been discriminated against. Thus, a discriminatory transfer, without a separate showing of harm, violates the statute.

Takeaways:

The Court’s ruling will lower the burden that a plaintiff will need to meet in order to sustain a claim under Title VII. And while the Court’s decision here focused solely on discriminatory job transfers, it remains to be seen whether lower courts will apply the same reasoning when considering other allegedly harmful or injurious employment actions in Title VII cases.

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Photo of Nigel F. Telman Nigel F. Telman

Nigel F. Telman is the Managing Partner of the Firm’s Chicago office, leads the Employment practice in the Chicago office, and is co-head of the Labor Department’s national Employment Litigation & Arbitration Practice Group.

Nigel serves as a high-level strategic advisor to his…

Nigel F. Telman is the Managing Partner of the Firm’s Chicago office, leads the Employment practice in the Chicago office, and is co-head of the Labor Department’s national Employment Litigation & Arbitration Practice Group.

Nigel serves as a high-level strategic advisor to his clients on “bet the company” employment-related claims that often involve significant reputational risk. The nation’s leading organizations turn to Nigel to handle their most sensitive and challenging matters which, due to his involvement, often successfully result in non-public and confidential resolutions. When matters are unable to be settled, Nigel works with clients to strategically design a litigation strategy that advantageously positions them for successful dispositive motions, trial and the possibility of post-trial appeals.

A strategic advisor to boards and C-suite executives on the full spectrum of the employer/employee relationship, Nigel’s nationwide practice is concentrated in litigating single and class action disputes arising out of claims of workplace harassment and employment discrimination, and in handling confidential workplace investigations. In addition, Nigel has significant experience defending and enforcing Restrictive Covenant Agreements, as well as protecting employers’ trade secrets and other confidential information from misappropriation by former employees through the institution of emergency litigation seeking temporary and permanent injunctive relief. Nigel utilizes his experience litigating employment-related disputes to counsel clients on effective ways to avoid litigation. His counseling practice focuses on training and advising clients on ways to improve all aspects of the employment relationship, including techniques on how to make effective hiring decisions; reviewing and revising employment policies, practices and procedures; and advising on employee disciplinary matters, reductions in force and termination decisions.

Providing the highest level of strategic advice and execution across all phases of the employee lifecycle from hire to exit, Nigel represents clients in a range of industries before state and federal courts throughout the country as well as before the U.S. Equal Employment Opportunity Commission, state and local administrative agencies, and the American Arbitration Association.

Nigel is ranked by Chambers USA in Illinois for Labor & Employment and his clients praise him as being “business-savvy and delivering stellar results. He is an extremely effective negotiator and has the highest degree of integrity in all of his dealings.”

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Rachel Fischer Rachel Fischer

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour…

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour matters. She represents employers in federal and state courts, arbitration tribunals, and before administrative agencies, and has litigated both single plaintiff and class action lawsuits. As an experienced trial lawyer, Rachel has successfully litigated numerous cases from complaint through jury verdict or arbitral award.

Rachel represents employers across a wide variety of industries, including banking and finance, law firms, media and entertainment, sports, and higher education.

Rachel also counsels clients on a broad range of employment law matters, including investigations, employee terminations and discipline, and employment policies and procedures.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Alexander J. Blutman Alexander J. Blutman

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment Law and Co-Producer of the Harvard Law School Parody. While at Harvard, Alex spent time as a legal intern with the UNLV Athletics Department, Special Olympics International, and the National Football League.

Prior to law school, Alex worked as a paralegal at an Am Law 100 law firm. He graduated from Duke University, where he served as a student-manager for the men’s basketball team.