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The Supreme Court has ruled that a discriminatory job transfer that causes some harm violates Title VII.  Prior to today’s decision, the lower federal courts almost all required a transferee plaintiff to prove “material”, “substantial”, “significant”, or some other heightened level of disadvantage.  

The Supreme Court’s April 17 decision in Muldrow v. St. Louis, 601 U.S. ___ (2024) revives the sex discrimination case of a police sergeant involuntarily transferred from the Intelligence Division job she had performed successfully for ten years to a Patrol District job, when her new boss decided a male officer was more suited to the Intelligence Division’s “dangerous work”.   Sgt. Muldrow’s pay, rank, and benefits did not change.   Before the transfer, however, she wore plain clothes, worked Monday to Friday, had FBI deputization and a take-home unmarked car, investigated public corruption and human trafficking cases, oversaw a Gang Unit, headed a Gun Crimes Unit, and had frequent interaction with commanding officers.  After the transfer, she worked in uniform, had a rotating schedule including weekends, supervised neighborhood patrol officers, approved officers’ arrests, reviewed their reports, did other administrative work, and performed some street patrol work herself.  Id. at *1-2.

The City won dismissal on summary judgment at the District Court because Muldrow had not shown a “material employment disadvantage.”  The Eighth Circuit Court of Appeals denied Muldrow’s appeal, finding she had experienced “only minor changes in working conditions.”  Id. at *3-4.  The Supreme Court sent the case back for analysis under the correct standard. 

The language of Title VII itself holds the key to the Supreme Court’s analysis as Justice Kagan’s opinion of the Court reiterates. Id. at *5, 8. The statute forbids employers from “discriminat[ing] 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.”  The changes in the “what, where, and when” of Sgt. Muldrow’s work clearly were terms and conditions of her employment.  Id. *5.  As Justice Kagan notes, Supreme Court precedent establishes that discrimination necessarily implies disadvantage, or worse treatment. Id. at *5-6.  Therefore, the plaintiff must show “some harm.” 

Where the prior standard went wrong, we are now instructed, is that it required some heightened level of harm.  How bad harm is, of course, is very much in the eye of the beholder.  The description of Sgt. Muldrow’s before and after work life apparently strikes her as significant, and I cannot personally disagree.  The District Court and the Eighth Circuit did not see it that way.  Justice Kagan ably illustrates the subjective nature of this judgment in reviewing the facts of a few cases plaintiffs lost for not being harmed enough, including a transfer to a fully night time schedule, a move to a work location in a 14 x 22-foot wind tunnel, and going from a school to an office building.  Id. at *7 (citations omitted).

The City argued that this higher standard is required by the holding in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) that to prove unlawful retaliation for bringing or aiding a Title VII claim, the plaintiff must show “materially adverse” employment action sufficient to dissuade workers from making efforts to enforce the statute.   The Muldrow majority rejected this argument, noting the different statutory language and purposes of the anti-discrimination and anti-retaliation provisions of the statute.  Muldrow, supra, at *9.

All nine Justices voted to send the Muldrow case back to the lower court, but they did so through one majority and three concurring opinions.  Justice Thomas agrees to vacate and remand because it is possible that the Eighth Circuit might have used a heightened harm requirement, although he equates Justice Kagan’s “disadvantageous” effect with the Eight Circuit’s “tangible change in working conditions that produces a material employment disadvantage.” Justice Alito opines that the facts as recited show alteration of Sgt. Muldrow’s terms or conditions of employment, but finds the discussion unhelpful.  He underscores that “not every unwanted employment experience affects and employee’s ‘terms’ or ‘conditions’ of employment.” Muldrow, supra, Alito concurrence at *1.  

Justice Kavanaugh’s concurrence is perhaps the most interesting, as he would abandon the requirement of a harm showing altogether.  

It bears repeating that St Louis lost this case, by a 9-0 Supreme Court headcount.  Maybe someone should tell the City and its lawyers.  The City’s press release today, and an internet posting by a partner in the City’s law firm, congratulate themselves on having the no-harm standard rejected by the Court (without noting that Justice Kavanaugh actually espoused it).    Law students in the Georgetown Law Appellate Courts Immersion Clinic represented the triumphant Petitioner, Jatonya Clayton Muldrow.