How Much Harm Is Enough? Transfer Supports Title VII Discrimination Claim

In a recent U.S. Supreme Court decision, there was no question that the complaining employee was moved out of her position because of her gender, but she suffered no loss of pay or rank. So the Court had to determine whether she was still able to maintain an employment discrimination claim under Title VII of the Civil Rights Act of 1964.

You Are Not Man Enough for This Job

From 2008 through 2017, Sergeant Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. During her tenure there, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit.

By virtue of her position, Muldrow was also deputized as a Task Force Officer with the Federal Bureau of Investigation—a status granting her FBI credentials, an unmarked vehicle she could take home, and the authority to pursue investigations outside St. Louis.

In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a “workhorse”—still more, that “if there was one sergeant he could count on in the division,” it was Muldrow.

But the new Intelligence Division commander, Captain Michael Deeba, instead asked the department to transfer Muldrow out of the unit. Deeba wanted to replace Muldrow—whom he sometimes called “Mrs.” rather than the customary “Sergeant”—with a male police officer who Deeba thought seemed a better fit for the division’s “very dangerous” work. The department approved the transfer against Muldrow’s wishes. It reassigned her to a uniformed job in the Fifth District.

While Muldrow’s rank and pay remained the same in the new position, her responsibilities, benefits, and schedule did not. Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, she now supervised the day-to-day activities of neighborhood patrol officers. Her new duties included approving their arrests, reviewing their reports, and handling other administrative matters. She also did some patrol work herself. Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. And the change of jobs made her workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. Now she was placed on a “rotating schedule” that often involved weekend shifts.

Lower Courts Don’t Find Enough Harm to State a Claim

Muldrow filed a Title VII suit to challenge the transfer, claiming the city had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment by ousting her from the Intelligence Division. She had been moved out of a “premier position [in] the Police Department” into a less “prestigious” and more “administrative” uniformed role. She had fewer “opportunities” to work on “important investigations,” as well as to “network” with commanding officers. And she lost material benefits—her weekday work schedule and take-home car. Or as she summarized the situation: “I went from straight days, weekends off with a take-home car and more visibility and responsibility within the Department to a rotating schedule with few weekends off, assigned to . . . uniformed patrol,” with “responsibilities being limited to that of administrative work” and “supervising officers on patrol.”

The district court granted the city summary judgment (dismissal in its favor without a trial). Muldrow needed to show her transfer caused a “significant” change in working conditions producing “material employment disadvantage.” The trial court held she couldn’t meet that heightened-injury standard because “she experienced no change in salary or rank.” Her loss of “the networking [opportunities] available in Intelligence” was immaterial because she hadn’t provided evidence it had harmed her “career prospects.” And given her continued “supervisory role,” she hadn’t “suffered a significant alteration to her work responsibilities.” Finally, the district court concluded the switch to a rotating schedule (including weekend work) and the loss of a take-home vehicle “appear to be minor alterations of employment, rather than material harms.”

The appeals court agreed that Muldrow had to—but could not—show the transfer caused a “materially significant disadvantage.” The transfer “did not result in a diminution to her title, salary, or benefits.” The change in her job responsibilities was “insufficient” to support a Title VII claim because she still had a “supervisory role” and participated in investigating serious crimes. Overall, the appeals court held, her claim couldn’t proceed because she had experienced “only minor changes in working conditions.”

Statute Requires Injury, But Nothing More

The Supreme Court agreed to review the case, and it partially approved and partially disapproved of the test the lower courts used.

It is a violation of Title VII to adversely change terms and conditions of employment based on an employee’s sex. The statutory language requires employees to show the transfer brought about some “disadvantageous” change in an employment term or condition, “differences in treatment that injure” employees. To make out a Title VII discrimination claim, a transferee must show some harm with respect to an identifiable term or condition of employment.

However, the Court noted the employee doesn’t need to show the harm incurred was “significant . . . . Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” To demand “significance” is to add words—and significant words, as it were—to the statute Congress enacted. Whether an adverse change in terms and conditions is significant “can lie in the eye of the beholder.”

Thus, the Supreme Court disapproved of earlier decisions in which appeals courts have found a change in terms and conditions to be insignificant—for example, a technician who was discriminatorily forced to work in a wind tunnel, or a shipping worker who was reassigned to a graveyard shift, or a school principle who was forced into a new role with fewer employees. Once an employee shows a change in terms and conditions was adverse, she doesn’t need to show the disadvantage was significant.

Here, the appeals court required Muldrow to show the allegedly discriminatory transfer out of the Intelligence Division produced a significant employment disadvantage. That is the wrong standard because she needed to show only some injury involving her employment terms or conditions. The transfer must have left her worse off but need not have left her significantly so.

Four Different Opinions, with a Unanimous Outcome

The Supreme Court’s result was approved by all nine justices, even though the precise formulation was signed by only six of them. Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh each wrote concurring opinions noting the majority was splitting hairs, and the same result would be reached regardless of whether the test established by the lower courts were approved.

Thomas and Alito remain concerned that the language the majority used could extend liability to trifling or immaterial injury, while Kavanaugh took the most radical approach (!) stating that even in the absence of any discernible harm, a job transfer expressly because of someone’s race or gender violates Title VII. But for their own reasons, all nine justices agreed that Muldrow’s claim should be reinstated and sent to trial.

Bottom Line

Different commentators have viewed this decision as both pro-employer and pro-employee. On one hand, the standard is liberalized as any adverse difference in terms and conditions—whether significant or not—will support a Title VII claim. On the other hand, the Court made clear that some showing of harm is necessary, which can shield employers from cases alleging technical violations with no discernible harm whatsoever. It’s significant that the case shows broad support for the underlying principles of Title VII.

Mark I. Schickman is the editor of California Employment Law Letter. You can reach him at mark@schickmanlaw.com.

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