On April 17, 2023, the Supreme Court handed down a unanimous decision in Muldrow v. City of St. Louis, Missouri, No. 22-193, holding that transferees alleging discrimination under Title VII of the Civil Rights Act of 1964 need only show that a transfer caused harm with respect to an identifiable term or condition of employment. The Court's decision upends decades of lower court precedent applying a "significant harm" standard to Title VII discrimination cases. As a result, plaintiffs claiming discrimination under Title VII will likely more easily advance beyond motions to dismiss or motions for summary judgment. In the wake of the Court's decisions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (6-2), No. 20-1199, and Students for Fair Admissions, Inc. v. Univ. of North Carolina (6-3), No. 21-707 (June 29, 2023), Muldrow will also likely continue to reshape how employers conceive of, implement, and communicate workplace Diversity, Equity and Inclusion ("DEI") efforts. The decision may be used by future plaintiffs in "reverse" discrimination actions to challenge DEI or affinity programs that provide non-economic benefits to some – but not all – employees. For example, DEI programs focused on mentoring or access to leadership open only to members of a certain protected class could be challenged under Muldrow by an employee positing that exclusion from such programs clears this new, lower standard of harm.
Background and Muldrow's Journey Through the Lower Courts
Plaintiff, a Sergeant in the St. Louis Police Department, alleged that following statements by her supervisor that he wanted to replace Plaintiff with a male police officer, she was transferred to a different division. While Plaintiff's rank and pay remained the same, her responsibilities, perks, and schedule changed. Plaintiff brought suit against her employer alleging sex discrimination under Title VII. Defendants prevailed on summary judgment in the Eastern District of Missouri, where the Court found that plaintiff was required—and failed—to show that her transfer effected a "'significant' change in working conditions producing a 'material employment disadvantage'" (applying the "Substantial Harm Standard"). The District Court held that the loss of networking opportunities, her continued—though diminished—supervisory role, and switch to a rotating schedule that included weekend work did not amount to a material employment disadvantage. On appeal, the Circuit Court for the Eight Circuit agreed, affirming the District Court's finding that Plaintiff could not show that the transfer caused a "materially significant disadvantage." The Supreme Court heard the case to resolve a circuit split over whether an employee challenging a transfer under Title VII must demonstrate a heightened threshold of harm.
The Supreme Court Majority Opinion
Title VII makes it unlawful for employers "to fail or refuse to hire or to discharge any individual, or otherwise 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." §2000e–2(a)(1). In its majority opinion, the Supreme Court explained that the plain language of Title VII required plaintiff to show that her transfer brought about some "harm respecting an identifiable term or condition of employment." Importantly, the harm needn't be significant, substantial, "or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar." The Court reasoned that to apply a standard demanding "significance" impermissibly adds "significant words" to the statute that Congress enacted.
The Court also addressed the Defendant's concerns that overruling the Substantial Harm Standard would open the floodgates for transferred employees by reminding the parties that the anti-discrimination provision requires some injury concerning the terms or conditions of employment and evidence that the employer acted for discriminatory reasons. The Court advised that courts may consider whether the harmful acts alleged suggests discriminatory intent. The Court then remanded the case to the Circuit Court to determine whether plaintiff's claimed harms are sufficiently disadvantageous under the Supreme Court's newly lowered standard.
Concurrences from three Justices explore the nuance – or decry the lack thereof – in the Court's majority opinion. Justices Thomas, Alito, and Kavanaugh each filed separate opinions concurring in the judgment. Justice Thomas concurred with the Court's conclusion that Title VII does not require a heightened showing of harm, but opined that the Eighth Circuit's interpretation of Title VII required a harm that was "more than ... trifling," suggesting that he found that court's approach sound. However, he suggested that even under this standard, Muldrow's claim should fail, because she failed to prove that her transfer resulted in any harm. Justice Alito's concurrence, like Thomas', suggested that he saw "little if any substantive difference" between the majority's standard and the standard applied by the Eighth Circuit, and that trial judges "will continue to do pretty much just what they have done for years" in assessing claims of discrimination, without regard for the supposedly changed standard. Justice Kavanaugh, in contrast, endorsed the position taken by the D.C. Circuit, which had held that a transfer was actionable even absent a showing of harm, because any transfer decision based on a protected characteristic – i.e., "discrimination" – violates Title VII, whether harmful or not.
What does Muldrow Mean for employers?
Employers facing discrimination claims should be aware of the lowered Muldrow standard in Title VII discrimination cases. Changes concerning the terms and conditions of employment once deemed insufficient under a "substantial harm" standard may now pass muster under the Muldrow standard. And, employers should yet again revisit the structures and goals of their DEI and affinity programs in light of this newly clarified scope of Title VII protections.
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