The Supreme Court of the United States has ruled unanimously that lower courts cannot require a plaintiff to show a heightened level of harm—such as "significant" or "material" harm—to establish that an involuntary job transfer is an "adverse employment action" within the meaning of Title VII of the Civil Rights Act of 1964.
The majority opinion in Muldrow v. City of St. Louis, Missouri, No. 22-193, 601 U.S. ___ (2024), authored by Justice Elena Kagan and joined by five other justices, states that the varying interpretations of that phrase that lower courts have formulated over the course of decades are deviations from the plain text of Title VII and should no longer apply. In their place, the Court articulated a new, uniform and lower standard: An adverse employment action, the Court said, is one that causes "some harm" to the affected employee "respecting an identifiable term or condition of employment."
In reversing an Eighth Circuit decision that determined a plaintiff had failed to clear what the Supreme Court called a "heightened bar," the Muldrow decision effectively made it less difficult for employees alleging discriminatory forced transfers to pursue claims under Title VII.
Title VII makes it illegal to, among other things, "discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." The statute does not use the phrase "adverse employment action."
Nevertheless, for decades, courts across the country have read into the statute a requirement that an employee asserting a discrimination claim show that he or she experienced an adverse employment action. Courts then attempted to define this judicially created phrase more precisely, with different circuit courts characterizing it variously as an employment action with a "significant detrimental effect," one that is "materially adverse" and one that results in a "significant change" or "serious and material change" to the terms, conditions or privileges of employment, among other formulations.
Like other circuits, the Eighth Circuit had adopted its own idiosyncratic definition of an "adverse employment action": It required a showing of a "materially significant disadvantage" resulting from the action.
In the proceedings below in Muldrow, the Eighth Circuit had relied on that definition to affirm a determination by the district court that the city of St. Louis's transfer of Sergeant Jatonya Clayborn Muldrow, a police officer, to another division of the police department, with no change to her pay, rank or status, was not an adverse employment action. Although the transfer altered some of Muldrow's responsibilities and her schedule, the Eighth Circuit reasoned, it did not result in a "tangible change in working conditions that produces a material employment disadvantage," and thus did not satisfy the circuit's then-extant precedent concerning what qualifies as an adverse employment action.
The Supreme Court granted certiorari to resolve the split of circuit authority on whether a plaintiff must meet a heightened standard of harm to sustain a Title VII claim. The Court determined that no such showing is necessary, because the plain text of Title VII does not require it.
After examining the language of the statute, the Court surveyed its earlier precedent, in which it had explained that a challenged employment action need only be "disadvantageous" to be adverse, and that the term "discriminate against" refers to "differences in treatment that injure" employees. The Court concluded that the statute's actual requirement is straightforward: "To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment."
The Court rejected any interpretation of Title VII that would require a transferee to meet "an elevated threshold of harm." To do so, the Court opined, would be to "impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written."
The Court specifically rejected the city's arguments for a higher threshold, disagreeing with it that Title VII's language carries an implication that any harm must be significant to be actionable, declining the city's invitation to analogize Title VII's prohibition on discrimination to its anti-retaliation provision (which requires "significant" harm), and refusing to accept the city's argument that lowering the standard would encourage "insubstantial lawsuits." On the last of these points, the Court noted that the textual requirements of Title VII—an injury, related to the terms, conditions and privileges of employment, that is "because of" a protected characteristic—are adequate to enable courts to dispose of meritless cases.
The Court concluded by stating that, under the newly lowered standard, it could not affirm the Eighth Circuit's decision, and it remanded the case for further proceedings consistent with its opinion.
Three concurring opinions, by Justices Thomas, Alito and Kavanaugh, offered differing views, while agreeing that the Eighth Circuit had asked too much of Sergeant Muldrow. Justice Thomas wrote that he did not regard the majority opinion as articulating a new standard, explaining that, in general, courts already require a showing of "harm that is more than trifling," which he said was not practically different from the majority's "some harm" standard. Similarly, Justice Alito predicted the new formulation would bring little change in how lower courts applied the harm requirement and criticized the majority's opinion as "unhelpful." Justice Kavanaugh suggested a more categorical approach, opining that any transfer that is based on a protected characteristic necessarily violates Title VII, regardless of whether any additional harm resulted, because "[t]he discrimination is harm." All three concurring justices agreed with the reversal of the Eighth Circuit's decision to the extent it had imposed too onerous a harm standard.
While Muldrow's "some harm" standard technically is limited to forced employee transfers, its reasoning is not so circumscribed. The Court's analysis likely will apply to other employment opportunities, such as assignments, mentoring, training and the like. Because "some harm" is a very low standard, the Court's decision makes it (1) more likely that there will be challenges to allegedly discriminatory decisions that affect terms, conditions and privileges of employment, and (2) less likely that such claims will be disposed of on summary judgment.
Muldrow is a clarion call for employers to review their policies and practices to see if there are any terms, conditions or privileges of employment, broadly defined, that are based on or limited by a Title VII-protected factor. Of course, employers are encouraged to consider the benefits of attorney-client privilege in assessing their potential exposure under the Supreme Court's new, vague―but clearly lower―standard.
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