Supreme Court Holds That Employees Challenging a Job Transfer Under Title VII Do Not Need To Prove Significant Harm

On April 17, 2024, the U.S. Supreme Court unanimously ruled in Muldrow v. City of St. Louis that plaintiffs bringing discrimination claims under Title VII of the Civil Rights Act of 1964 on the basis of a job transfer do not need to prove that the transfer caused them significant harm. Instead, they need to prove only that the transfer brought about “some harm” with respect to an identifiable term or condition of employment. In so holding, the Court vacated a decision by the Eighth Circuit granting summary judgment for the city of St. Louis and settled a split among federal circuit courts, including the Second Circuit, which required plaintiffs to show significant harm from a job transfer. Muldrow is the second unanimous decision by the Supreme Court in recent months on matters of employment law. In February, the Court ruled in Murray v. UBS (discussed in a prior alert) that plaintiffs bringing whistleblower retaliation claims under the Sarbanes-Oxley Act of 2022 do not need to prove that their employers acted with retaliatory intent. These two decisions demonstrate a rare alignment among the justices in taking a textualist approach to the interpretation of employment laws.  

Title VII makes it unlawful for an employer “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.” 42 U.S.C. § 2000e-2(a)(1). At issue in Muldrow was whether the plaintiff’s job transfer from a plainclothes officer in the police department’s Intelligence Division to a uniformed job supervising patrol officers constituted unlawful discrimination regarding the “terms [or] conditions” of her employment on the basis of her gender. The district court granted summary judgment to the city, holding that the plaintiff could not show that her transfer effected a “significant” change in working conditions and thereby produced a “material employment disadvantage,” because she experienced no change in salary or rank and she had conceded that the transfer did not harm her career prospects. The Eighth Circuit affirmed. For decades, other circuit courts have similarly applied a materiality standard for evaluating whether a plaintiff proved that a job transfer caused an adverse action under Title VII.

The Supreme Court opinion, written by Justice Elena Kagan, holds that plaintiffs do not need to show that a job transfer constituted some material or significant change in the terms or conditions of their employment because the language of Title VII contains no such requirement. The Court held that instead, Title VII requires a plaintiff merely to show some injury with respect to employment terms or conditions. The “terms [or] conditions” phrase “is not used in the narrow contractual sense” but instead “covers more than the economic or tangible.” The Court states that its ruling “lowers the bar Title VII plaintiffs must meet.” In applying this standard to the plaintiff in Muldrow, the Court held that her allegations were sufficient “with room to spare”; she was removed from a plainclothes job that gave her substantial responsibility including FBI credentials, an unmarked take-home car and a strictly weekday schedule, and she was assigned to another post that largely consisted of supervisory administrative work and a rotating weekend schedule in which she also lost her FBI status and take-home car.

The Court rejected several of the city’s arguments, including its argument that the lawsuit floodgates would open if the Court rejected a significance standard. The Court emphasized that lower courts still retain “multiple ways to dispose of meritless Title VII claims challenging transfer decisions” because plaintiffs still need to show some injury and the injury must concern a term or condition of employment. Further, plaintiffs still must show evidence of discrimination — i.e., that the employer acted “because of” sex or some other protected trait. And courts can also still consider whether a potentially “less harmful act,” or a less “significant” transfer, is “less suggestive of intentional discrimination.” But, the Court noted, if the floodgates do open, the reason would be because that is how Congress intended for Title VII to operate based on its clear language.

The Court drew a notable distinction between Title VII’s prohibition on discrimination with respect to terms and conditions of employment and its separate anti-retaliation provision protecting employees who bring or aid in a Title VII charge. Under that provision, the Court held, consistent with its 2006 holding in Burlington Northern & Santa Fe Railway Co. v. White, that alleged retaliatory action must be “materially adverse” and cause “significant harm.” 548 U.S. 53, 68 (2006). In the retaliation context, the test is whether the employer’s actions were serious enough to dissuade a reasonable employee from making or supporting a charge of discrimination, and the Court determined that less serious harm would not deter Title VII enforcement.

There were three solo concurring opinions by the Court. In Justice Clarence Thomas’ concurring opinion, he makes the point that the Eighth Circuit, and others, did not necessarily impose a heightened standard but rather required, as the majority opinion does, a plaintiff to show more than a trifling harm. He predicts that on remand and after applying the Court’s clarified standard, plaintiff Muldrow may still not be able to survive summary judgment because she conceded that she simply preferred her old job to her new one and maintained her supervisory position, her pay and her rank. Justice Samuel Alito’s concurring opinion makes a similar argument and finds the majority opinion “unhelpful” to lower court judges, who now must draw a distinction between proof of “injury” and injury that need not be “significant.” Justice Alito questions whether such distinction is meaningful when any “injury” carries with it some degree of significance, and predicts that lower courts will simply do away with using “significance” language and nevertheless reach the same outcomes. Justice Brett Kavanaugh’s concurring opinion asserts that there should not be any requirement that a plaintiff show injury by a transfer. In his view, any transfer that is made for a discriminatory reason is unlawful under Title VII because transfers change the terms and conditions of employment.

There are two key takeaways from Muldrow. First, plaintiffs alleging discriminatory job transfers under Title VII need not prove that the transfer led to some significant level of injury. Second, more critically, and despite the doubts espoused in some of the concurring opinions, this holding reflects the position of a majority of the Court that the burden on plaintiffs to prove discriminatory transfers is low. And for those who practice in courts in the Second Circuit and certain other circuits, this new standard is a departure from decades of precedent and could lead to more lawsuits involving job transfers that plaintiffs might not have otherwise brought.

For questions or concerns regarding any of the issues raised in this alert, please contact a member of Kramer Levin’s Employment Law Department.