Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. Under the statute, it is unlawful for an employer to “fail or refuse to hire or to discharge any individual” on the basis of their protected class but includes a catchall provision that an employer may not “otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” for the same. 42 U.S.C.A. § 2000e-2(a)(1).
In the decades since the passage of Title VII, federal courts have not interpreted the statute consistently. For example, as recently as 2022, the Fifth Circuit only recognized Title VII causes of action where discrimination arose out of an “ultimate employment decision,” such as hiring, granting leave, discharging, promoting, or compensating, and on that basis denied a blatant form of sex discrimination related to scheduling. Hamilton v. Dallas County, 42 F.4th 550 (5th Cir. 2022). Meanwhile the Eighth Circuit required a showing that the discriminatory action effected a “significant” change in working conditions that amounted to a “material employment disadvantage” which was limited to “termination, reduction in pay or benefits, and changes in employment that significantly affect an employee’s future career prospects.” Rester v. Stephens Media, LLC, 739 F.3d 1127, 1131 (8th Cir. 2014); Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 633 (8th Cir. 2016). However, in its recent decision in Muldrow v. City of St. Louis, Missouri, the Supreme Court has clarified the scope of actionable claims for Title VII discrimination by eliminating any “heightened-injury” threshold. 144 S.Ct. 967 (U.S. 2024).
The plaintiff in Muldrow was a plainclothes officer in the St. Louis’ Police Intelligence Division for nine years. During that time, she investigated major crimes, had supervisory roles in the Gang and Gun Crimes Units, and was deputized with the FBI as result of her position, earning her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis. She was well-respected by her peers, and her supervisor called her a “workhorse.” Despite her glowing employment record, a new commander replaced “Mrs. Muldrow” (what he called her instead of “Sergeant”) with a male officer because he was a “better fit for the Division’s very dangerous work.”
The resulting transfer placed the plaintiff as the supervisor of day-to-day neighborhood patrol officers, a role that was much more administrative than supervisory. She was stripped of her FBI credentials and its corresponding perks, and her schedule changed from exclusively Monday-Friday working hours to a rotating schedule that included weekends. Notably, the transfer did not affect her rank and pay. She filed a Title VII discrimination claim in 2019. The District Court held that she did not meet the “heightened-injury standard” because the transfer did not alter her rank and pay, noting that the change in responsibilities, perks and schedule were no more than “minor alterations of employment, rather than material harms.” The Eighth Circuit affirmed, agreeing that she failed to show how her transfer caused her a “materially significant disadvantage.”
Justice Kagan, writing for the majority, highlighted that there is nothing in Title VII to establish the need for an elevated threshold of harm and that, by adding such a requirement, courts have imposed a new requirement on a Title VII claimant beyond what Congress intended. Simply put, the Court held that a Title VII discrimination claimant does not need to show that any harm incurred was “significant…serious, substantial or any other similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Rather, the employee must only show that they incurred “some harm respecting an identifiable term or condition of employment” such that they were left “worse off.”
The Court rejected the City’s textual, precedential, and policy-based arguments. The Court reiterated that nothing in the text of Title VII required that the harm shown be significant. The precedent raised by the City – Burlington Northern & Santa Fe Railway Co. v. White – did impose a requirement to demonstrate significant harm suffered in retaliation cases under Title VII. 548 U.S. 53 (2006) However, the Muldrow decision highlighted that the discrimination provisions of Title VII “flatly [prevent] injury to individuals based on status, without distinguishing between significant and less significant harm.” Finally, the Court rejected the argument that, by lowering the standard, the Court’s holding would invite claimants to “swamp courts and employers” with “insubstantial lawsuits,” noting that courts retain multiple ways to dispose of meritless Title VII claims challenging transfers.
The Muldrow case was decided on April 17, 2024, and in the short time since its passage its impact can already be seen in the lower circuit courts. The Fifth Circuit has invoked the opinion for the proposition that an employee seeking Title VII relief must only “show some harm” and not satisfy any significance test. 2024 WL 2290653 (2024). The Seventh Circuit has cited Muldrow for the requirement that an adverse reassignment action must have merely left the claimant “worse off” with respect to the terms and conditions of employment. 2024 WL 1795859. The Ninth Circuit has fully vacated its lower courts’ decisions necessitating that a transfer must have caused a plaintiff “significant harm” to be actionable. 2024 WL 1985817.
The true impact of the decision remains to be seen, but both public and private employers can expect that Title VII claims which may have previously been denied for a lack of “significance” will now survive to the more advanced stages of litigation. This includes all employment decisions affecting the “terms and conditions of employment,” and is not limited to “material actions” like the decisions to hire or discharge.
Takeaways:
• The U.S. Supreme Court has eliminated the requirement that a claimant in a Title VII discrimination action must demonstrate a “significant” change in working conditions that results in a “materially adverse employment action.”
• Under the new standard, a claimant need only demonstrate that they suffered “some harm” respecting an identifiable term or condition of employment which left them “worse off.”
• While this is a case involving an employee’s transfer, the holding applies more broadly to any Title VII discrimination where an employer’s action affects the employee’s terms and conditions of employment, however remote, so long as it causes them “some harm.”
Bottom Line:
The United States Supreme Court’s Muldrow decision holds that a Title VII discrimination claimant must only show that they suffered “some harm” which left them “worse off” than before. Employers should therefore be mindful of the potential consequences of this more liberal liability standard and consult with counsel before making any decision which might be construed as actionable under this new standard. Campbell Durrant attorneys are available to advise you regarding this new standard.
