On Wednesday, the U.S. Supreme Court unanimously ruled that Title VII does not require a plaintiff to show that a discriminatory transfer to another position caused her to suffer “significant” or “material” harm.
The plaintiff only has to show “some” harm resulting from the transfer.
Muldrow v. St. Louis
Plaintiff Jatonya Muldrow – who had spent nine years as a plainclothes officer with the St. Louis Police Department, alleged that she was transferred to a different position because she was a woman. According to the opinion written by Justice Elena Kagan, the plaintiff “investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as the head of the Gun Crimes Unit.” She also regularly worked a Monday through Friday schedule and had the use of “an unmarked take-home vehicle.”
However, in 2017, a new head of the Intelligence Unit where the plaintiff worked replaced her with a male officer “who seemed a better fit for the Division’s ‘very dangerous’ work.” According to Justice Kagan’s summary of the facts, the transfer appeared to be a blatant instance of sex discrimination. (According to the Court, the new boss also referred to the plaintiff as “Mrs.” instead of “Sergeant.”)
In her new position, the plaintiff’s pay and rank remained unchanged. But instead of doing more interesting and prestigious undercover work, she supervised uniformed neighborhood patrol officers. She also had to work weekends frequently in her new position and no longer had the use of the vehicle.
The plaintiff filed suit, alleging that her transfer violated the Title VII ban on sex discrimination. However, a federal district court in Missouri granted summary judgment to the City on the ground that the plaintiff had failed to show “significant” harm from the transfer. The U.S. Court of Appeals for the Eighth Circuit affirmed.
The Supreme Court agreed to hear the case, and in Wednesday’s decision, reversed, finding unanimously that “significant” or “material” harm was not required for a successful discriminatory transfer case under Title VII. The decision overrules positions taken by the U.S. Courts of Appeal for the First, Second, Fourth, Seventh, Tenth, and Eleventh Circuits, as well as the District of Columbia Circuit, which has held that no showing of harm is required for a valid claim.
Concurrences
As noted, the Supreme Court decision was unanimous. Interestingly, though, two conservative Justices expressed the view that the Court had not gone far enough.
Justice Samuel Alito contended that the “some harm” standard was “unhelpful,” saying, “I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.” He concluded that the courts would simply “mind the words they use but will continue to do pretty much just what they have done for years.”
Justice Brett Kavanaugh, who came from the D.C. Circuit, agreed with that Circuit’s standard that no showing of harm should be required. He said, “a discriminatory transfer violates [Title VII]. . . . [t]he text of Title VII does not require a separate showing of some harm. The discrimination is harm.” (Emphasis added.)
Employers, don’t panic!
The Court’s decision in Muldrow could make it more difficult for employers to win summary judgment in cases where a plaintiff alleges that he or she was transferred for a discriminatory reason. As Justice Kavanaugh noted, a plaintiff alleging discriminatory transfer “should easily be able to show some additional harm – whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”
But employers have other defenses in addition to the lack of harm caused by the transfer, the most important one being that the transfer was for legitimate, non-discriminatory reasons.
As with disciplinary action and terminations, managers and supervisors should be required to confer in advance with Human Resources or employment counsel before forcing an employee to transfer to a different position, even if the new position is not viewed as a demotion. If there are legitimate reasons for the transfer – including that the employee is the one who requested the transfer – those reasons should be thoroughly documented. If an employee is being transferred because of poor performance in the current position, those performance issues should also be thoroughly documented, and the employer should ensure that it is in a position to prove that it made constructive efforts to address those issues before requiring the employee to transfer elsewhere.