On April 17, 2024, the U.S. Supreme Court ruled in Muldrow v. City of St. Louis, Missouri that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964, as amended, must show only that the transfer brought about “some harm” with respect to an identifiable term or condition of employment, rejecting the proposition that the harm must be significant or otherwise exceed some heightened threshold to be actionable.
Sergeant Jatonya Clayborn Muldrow sued her employer, the St. Louis Police Department, alleging that she was transferred from a prestigious role as a plainclothes officer to a less prestigious uniformed job because of her sex. While her rank and pay remained the same, she claimed that the transfer changed her responsibilities, the perks available to her, and her schedule. The district court granted the City summary judgment, and the Eighth Circuit affirmed, on the basis that the transfer was not a “materially significant disadvantage” sufficient to incur Title VII liability under Circuit precedent. The Supreme Court granted certiorari to resolve a circuit split over whether Title VII imposes a heightened harm requirement.
The Court looked to the text of Title VII, which, in part, provides that it shall be an unlawful employment practice 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 . . . .”1
The Court held that the statute imposes no heightened threshold of harm—described variously by the lower courts as “significant,” “serious” or something similar. Writing for the Court, Justice Kagan observed that while Title VII requires that a discrimination plaintiff show that any change to a term or condition of employment is “disadvantageous,” the statute says nothing about how disadvantageous a transfer must be. In reaching that conclusion, the Court also observed that assessing the degree of harm can lead to disregard for “varied kinds of disadvantage”; reasonable judges might disagree about the significance of a particular transfer, but claims should not be rejected because plaintiffs fail to make a showing not required by the text of the statute. Justices Alito, Thomas and Kavanaugh concurred in the judgment and each authored a separate opinion.
Although focused on the requisite showing of harm by an employee challenging a job transfer, the Court’s decision is likely to make it easier for employees to pursue all types of Title VII discrimination claims under the “some” harm standard. Notably, this may include an increase in “reverse discrimination” claims challenging aspects of workplace diversity, equity and inclusion programs, such as targeted training or mentoring programs, under Title VII. Such claims may contend that plaintiffs can demonstrate “some” harm as a result of their exclusion from these types of programs, even in the absence of any material or significant workplace disadvantage. While the risk presented by such programs is highly fact-specific, efforts to increase opportunity for all, or broaden the pool of candidates considered for particular opportunities, remain best practices, even under the more expansive standard that Muldrow sets forth.
The WilmerHale employment and antidiscrimination groups are available to assist as the landscape continues to evolve.
