United States Supreme Court Establishes Standard for Claims Involving Discriminatory Job Transfer

May 14, 2024

By: Meagan Cooper Borgerson

     In Muldrow v. City of St. Louis, Missouri, No. 22-193, 601 U.S. ____ (2024), the United States Supreme Court considered the extent to which Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from discriminatory job transfers where the new position did not cause the employee significant harm.  

     Sergeant Jatonya Clayburn Muldrow with the St. Louis police department was laterally transferred from the intelligence division to a different department.  Neither her pay nor her job title changed, but she alleged the position to which she was transferred was not as prestigious and had a less desirable work schedule, overtime pay structure, and dress code.  Sergeant Muldrow’s former position was filled by a male employee.

     Sergeant Muldrow’s lawsuit, which alleged that the transfer was based on her sex in violation of Title VII, was dismissed at summary judgment because she failed to demonstrate that her transfer caused “a tangible change in working conditions that produced a material employment disadvantage.”  The United States Court of Appeals for the Eighth Circuit affirmed the trial court’s decision, finding the job transfer resulted in “only minor changes in working conditions.”
     Sergeant Muldrow argued to the Supreme Court that any discriminatory act, regardless of how trivial the harm, constituted unlawful discrimination under Title VII.  The City of St. Louis, on the other hand, argued that the Supreme Court should uphold the “material harm” standard that had been applied for more than 30 years.

     Justice Elana Kagan, writing for a majority of the Court, vacated the decision of the lower court and held that Title VII protects employees from discriminatory job transfers, even where the new position did not cause the employee significant harm.  The Court determined that, as long as a job transfer is made due to a protected characteristic of the employee and left the employee disadvantaged in some way (i.e., caused the employee “some injury”), it violates the prohibition against discrimination prescribed by Title VII.  While this holding is limited in that it applies only to job transfers and not other adverse employment actions, this case opens the door for a broader range of claims under Title VII.

     Three separate concurring opinions were authored, all of which note various perceived infirmities with the majority’s opinion.  Of import, Justice Alito criticized the “unhelpful” majority opinion for failing to clarify the degree of harm required to establish a violation of Title VII.  He noted that there is “little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like” and he expressed concern over how lower courts will interpret this “guidance.”  Justices Thomas and Kavanaugh also concurred in the judgment, but disagreed on how the Court reached it decision, with Justice Kavanaugh noting that “[t]he discrimination is harm” and that a plaintiff should not have to show more than a discriminatory job transfer for harm to be established.  

     As highlighted in the concurring opinions, the Supreme Court’s decision in Muldrow likely will create new challenges for businesses when making job transfer decisions and, ultimately, in defending those decisions in the court system.