Seyfarth Synopsis: One of the most anticipated employment cases of the term was recently argued before the United States Supreme Court. In Muldrow v. City of St. Louis the Court requested the parties address the issue: Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage.
Background
Plaintiff Jatonya Muldrow is a sergeant in the St. Louis Police Department. After initially being employed as a patrol detective, she was promoted to the Department's Intelligence Division, where she remained for nine years. While in the Intelligence Division, her work included at various times public corruption and human trafficking cases, serving as head of the Gun Crimes Intelligence Unit, and overseeing the Gang Unit. For the last year, she also was deputized as a Task Force Officer to work with the Federal Bureau of Investigation (FBI) with the same privileges as an FBI agent.
In 2017, an interim police commissioner was appointed who implemented various personnel changes with respect to numerous officers, including Muldrow. Muldrow was laterally transferred to a position in which she supervised officers on patrol, reviewing and approving arrests, responding to "Code 1" calls for service for crimes such as homicides, robberies, assaults, and home invasions, and performing other related administrative responsibilities. While as a result of the lateral transfer her schedule, uniform, vehicle and other aspects of her job changed she did not claim that the changes themselves caused her a significant disadvantage. Less than two weeks after her transfer, Sergeant Muldrow filed a charge with the EEOC, alleging the transfer was motivated by sex discrimination.
The Lower Court Decisions
The district court granted summary judgment to the City on the ground that Muldrow failed to show an element of her prima facie claim: namely, her involuntary transfer was not an adverse employment action because it did not result in any change in salary or benefits, her responsibilities did not significantly change, and she expressed only a preference for one job over another. (Notably, Muldrow failed to offer evidence to prove that other aspects of the transfer, like the change in hours, duties, and dress code were disadvantageous.)
Mulrow appealed to the Eight Circuit Court of Appeals. The appellate court affirmed the lower court's decision, reasoning that a lateral transfer, without proof of harm resulting from the transfer, is not an actionable adverse employment action under Title VII. The court of appeals further cautioned that to hold otherwise would permit minor personnel decisions to form the basis of discrimination suits.
Muldrow then petitioned the U.S. Supreme Court for review. The Court agreed to hear the case for the narrow purpose of answering the question: Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?
Muldrow's Arguments to the Supreme Court
Muldrow argued that Title VII is broadly applicable, prohibiting any decision based on sex or other protected characteristics that affects a "term, condition, or privilege" of employment. She maintained that the plain language of the statute supports this reading, based on the lack of qualification employed by Congress. In her view, job transfers, regardless of whether they cause "significant damage," directly impact the terms or conditions of employment and are actionable when motivated by a protected characteristic. Muldrow relied on legislative history to support this position, stating Congress intended to rid the workplace of all discrimination, so efforts to limit claims solely to those disadvantaging an employee would "def[y] its text and history."
Muldrow also argued against importing concepts from hostile work environment and retaliation standards that may impose a heightened harm requirement. Doing so, in her view, has caused the lower courts to ignore the impact of terms, conditions, or privileges of employment such as professional opportunities, working conditions, or those that are stigmatizing and send a message of inferiority or exclusion.
The City of St. Louis's Arguments to the Supreme Court
The City of St. Louis argued that the Court should continue 30 years of precedent that Title VII discrimination claims based on a job assignment or transfer require a material, objective harm.
The City presented several textual arguments. Under Section 703(a)(1) of Title VII, it is 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." The requirement to "discriminate against" suggests that the individual must demonstrate an actual harm, not just differential treatment. In addition, the same section provides the explicit examples of "failure to hire" and "discharge," which describe decisions that are facially harmful, so the same notion of harm should be read into deciding whether other terms, conditions, or privileges of employment are discriminatory. And elsewhere in the statute, Congress granted a private right of action to those "aggrieved," again suggesting that a showing of harm is required.
The City also presented the practical argument that the requirement to show an adverse employment action is to separate "meritorious cases from trivial personnel actions," which preserves judicial resources. As many prior decisions have observed, Title VII was not intended to act as a "general civility code," and despite Muldrow's protests, the harm requirement is not so high as to bar plaintiffs with legitimate claims. (A number of amicus briefs were submitted in the case as well. In a brief in support of the City of St. Louis filed by the Society for Human Resources Management, SHRM noted that the traditional approach to Title VII – denying recourse for mere personal preferences as opposed to changes that include an objective showing of material harm – avoids enmeshing courts in non-material personnel actions best addressed by HR officials. SHRM further noted that the traditional judicial approach to Title VII has been followed by the vast majority of courts, follows Title VII's statutory language, is faithful to the statutory text, and serves the doctrine of constitutional avoidance. Seyfarth attorneys represented SHRM in the Supreme Court.)
Oral Argument
On December 6, 2023, over the course of nearly two hours, the Justices posed tough questions all around. And though the Supreme Court certified a narrow question – whether Title VII prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage – the Justices' questions and responses ranged beyond that issue and frequently touched upon other types of employment actions that might provide the basis for litigation.
Muldrow staked out her position from the outset that "differential treatment" and "worse treatment" are coterminous – in other words, a decision based on discrimination is an injury, and it is irrelevant whether the decision resulted in some additional objective harm. Many of the Justices appeared to agree with the premise.
Justice Gorsuch, for example, observed that in other areas of the law, the Court has concluded that it is enough to show that discrimination has occurred and it is not necessary to inquire into the severity or effects of the discrimination.
Chief Justice Roberts and Justices Thomas, Alito, and to some degree Justice Kavanaugh did not disagree that discrimination in the workplace is an injury. However, all seemed to be searching for an avenue to exclude acts that might be considered "trivial" or just workplace "unpleasantness." To that end, both Justices Alito and Kavanaugh asked at different points in the argument whether it is true that "not everything that happens in the workplace falls into Title VII." Both Muldrow and the government agreed with that point. However, no clear line of demarcation was articulated by the parties or the Justices.
Next Steps
Questions raised by the Supreme Court Justices during oral argument suggest that changes may be coming to the long standing interpretation by several courts of Title VII as it concerns the element of injury. Will Plaintiffs be required to plead and prove an adverse employment action to state a claim and ultimately prevail under Title VII.?
Until the Supreme Court issues its decision, human resources executives and in house counsel should be aware that even employment related actions that do not result in a material negative change in an employee's terms and conditions of employment may be covered by Title VII, including decisions relating to: unfavorable performance evaluations that do not result in any appreciable job detriment, job criticisms not culminating in adverse action, performance improvement plans, employee monitoring, decisions rescinded before they become effective, undesired job assignments, minor job restructurings, delays in job transfers, employer dress and grooming policies that have no effect on job opportunities, unfair accusations, changes in schedules, supervisors or location of assignment, and, of course, lateral transfers involving no material harm.
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