Legal interpretation of unlawful employment practices is evolving. The Supreme Court and several appeals courts have rendered recent decisions that are changing the legal standards for discrimination in employment law under Title VII of the Civil Rights Act from the traditional interpretations. As a result of these decisions, the legal interpretation of employer accountability, that is, actions that harm employees, although historically acceptable practices, may now constitute unlawful employment actions.
This evolution opens the door for legal claims that previously were considered unacceptable by courts. Consequently, employers should learn that their DEI policies (diversity, equity, and inclusion policies) must change with the times. And employees may have legal recourse where there was none previously.
Title VII Legal Interpretations Change for Workplace Discrimination
On April 17, in Muldrow v. St. Louis, the U.S. Supreme Court held that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964 must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that the harm need not be significant. The decision resolved a split between the federal circuits and is, in some ways, similar to the Fifth Circuit's decision in Hamilton v. Dallas County, which we wrote about in 2023. In both cases, the employee's rank and pay remained the same, but other factors, such as responsibilities, prestige, or schedule, changed. The impact of the Muldrow decision on workplace discrimination may mark the beginning of the evolution of how Title VII affects workplace discrimination.
Effect on Future Discrimination Lawsuits
The full implications of Muldrow are not yet clear. Many more employees who believe that they are the victims of workplace discrimination may be able to succeed in Title VII lawsuits. On the other hand, the new standard of Muldrow may bolster challenges to diversity, equity, and inclusion (DEI) policies in employment.
Involuntary Transfer at the Heart of the Supreme Court Decision
Sergeant Jatonya Clayborn Muldrow was a patrol detective in the Intelligence Division of the St. Louis Police Department. From 2008 to 2017, she worked on cases involving public corruption, human trafficking, gun crimes, and gangs. The position was a traditional eight-hour workday Monday through Friday. During her assignment to the Intelligence Division, Muldrow was deputized as a task force officer by the FBI's Human Trafficking Unit. This deputization provided Muldrow with privileges equivalent to those of an FBI agent, including entry to FBI field offices, use of an unmarked FBI vehicle, and the potential to earn $17,500 in overtime pay.
In 2017, Michael Deeba joined the Intelligence Division as its new commander. He sought to replace Muldrow with a male officer who he felt was better suited for the dangerous work the Intelligence Division handled. Sergeant Muldrow was transferred to a uniformed job against her wishes, an involuntary transfer. In her new position, Muldrow's duties involved supervising the day-to-day activities of neighborhood patrol officers and administrative tasks. She no longer had status in the FBI or an unmarked take-home car. Rather than working from Monday to Friday, her new hours involved a rotating schedule and frequent weekend shifts, and she lost opportunities for overtime pay.
Legal Interpretation Challenge to Involuntary Job Transfers in Courts
Muldrow sued the City of St. Louis, alleging gender discrimination and retaliation for her reports of discriminatory practices in violation of Title VII. The Eastern District of Missouri focused on whether the transfer damaged Muldrow's financial standing or career, concluded that it did not, and granted summary judgment to the city. Muldrow appealed to the Eighth Circuit, which affirmed the District Court's decision. The Supreme Court granted certiorari in June 2023.
Civil Rights Legislation
Title VII of the Civil Rights Act provides that:
"It shall be an unlawful employment practice for an employer –
(1) 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; or
(2) to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
The Eighth Circuit had interpreted this to require a "materially significant disadvantage." Muldrow argued that the magnitude of the harm was irrelevant and that the Eighth Circuit's interpretation overstepped the plain language of the statute.
Federal Legal Interpretation: Supreme Court Decision on Workplace Discrimination
In its April opinion, the Supreme Court held that, to state a claim for discrimination under Title VII, an employee must show only:
- the employer's action was discriminatory, and
- that the employee suffered "some harm" respecting an identifiable term or condition of employment.
The "some harm" threshold is a downward departure from the significant, material, or serious harm standard previously applied by the Eighth Circuit.
In 2023, the Fifth Circuit faced a similar question in Hamilton v. Dallas County. Prior to its decision in Hamilton, the Fifth Circuit had interpreted Title VII to require an "ultimate employment decision" such as hiring, firing, granting leave, or a compensation determination. The Fifth Circuit reversed itself in that case, to hold that the "ultimate employment decision" limitation was simply not in the language of Title VII. Hamilton brought the Fifth Circuit into line with the Sixth and D.C. Circuits. In Muldrow, the Supreme Court seems to set this as a national standard.
More Employees May Claim Workplace Discrimination
More workers throughout the country may be able to succeed in demonstrating workplace discrimination under Title VII. Employers will certainly become involved in reviewing their policies about involuntary transfers. The new "harm but not significant harm" standard, may also support challenges to employer DEI policies, the newest incarnation of "reverse discrimination" lawsuits. In any event, both employers and employees can benefit from the advice of experienced employment lawyers.
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