In the March edition of this newsletter, attorney Scott Simmons previewed the case of Muldrow v. City of St. Louis, then pending before the U.S. Supreme Court. A few weeks later, the court issued its decision in Muldrow, overturning the 8th Circuit’s holding that the plaintiff alleging a violation of Title VII must, but could not, prove that her allegedly discriminatory transfer caused her a “materially significant disadvantage.”[1] Instead, the Supreme Court held that plaintiffs simply must show “some” harm respecting the terms and conditions of their employment,[2] thereby intentionally lowering the bar Title VII plaintiffs must meet to prove an adverse employment action.[3] 

The Supreme Court’s Decision

To recap, plaintiff Muldrow, a city police officer, sued the city under Title VII, alleging that she was transferred to a less desirable position against her wishes because of her sex. Muldrow’s rank and pay remained the same after the transfer, and she retained a supervisory position.[4] However, she asserted several reasons why the transfer was disadvantageous to her, including that it was less prestigious, more administrative, involved fewer networking opportunities and “important investigations,” had a less regular and desirable work schedule, and did not come with a work-provided car as her old position did.[5] 

Writing for a unanimous (in holding) court, Justice Kagan focused on the text of Title VII and specifically rejected what she considered to be the “heightened standard” that the 8th Circuit and other Courts of Appeal have placed on plaintiffs alleging claims of discriminatory job transfer. Historically, absent a change of pay or rank, it has been difficult for plaintiffs to prove that job transfer or reassignment amounts to an adverse employment action. However, the court noted that Title VII prohibits discrimination with respect to an individual’s “compensation, terms, conditions, or privileges of employment.”[6] Showing “some ‘disadvantageous’ change in an employment term or condition” made because of the employee’s sex is sufficient showing to meet the statutory requirements.[7] Citing sexual harassment precedent, the court reasoned that “[t]he ‘terms [or] conditions’ phrase … is not used ‘in the narrow contractual sense;’ it covers more than the ‘economic or tangible.’”[8]  To dismiss a case because a plaintiff cannot prove that the harm she suffered from the transfer was sufficiently “significant,” as the 8th Circuit did, “[o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar,” added requirements not borne by statute.[9] 

The court’s decision intentionally lowers the bar for proving the “adverse employment action” element of a disparate treatment claim when the alleged adverse action is transfer. Indeed, the court cites several appellate court decisions involving claims of discriminatory transfer in which the court held that the harm alleged by the plaintiff was not sufficiently significant to amount to an adverse employment action. The court then clarified that the new “simple harm” standard would necessitate different results in those cases.[10] 

Although the holding was unanimous, the three concurring decisions reflect a lack of unanimity on what the required showing of harm actually is or should be. Justice Thomas would require that a plaintiff prove “more-than-trifling-harm,”[11] while Justice Alito disparages the majority opinion for articulating a standard that is different from the Court of Appeals only in its terminology, rather than its actual substance[12]. And Justice Kavanaugh would do away with any “harm” standard; rather, he opines, “[t]he discrimination is the harm,” and the actual injury suffered is relevant only to proving damages.[13]

Impact of the Decision

Since the opinion was released in mid-April, and as of this writing, it has already been cited 49 times by federal courts of appeal and district courts. Despite Justice Alito’s misgivings, Muldrow will undoubtedly alter the way lower courts view discriminatory transfer cases, and likely other types of disparate treatment claims. 

The 6th Circuit, for example, had previously articulated the following standards for proving adverse employment action in a transfer case: “that an employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability,”[14] and that “[a]n adverse employment action requires ‘a materially adverse change in the terms and conditions of [a plaintiff's] employment,’ such as a ‘significant change in employment status,’ and not including a bruised ego.’”[15] Both of these statements appear to contradict Muldrow.

In fact, the 6th Circuit has already applied Muldrow to repudiate the “intolerability” standard. In Milczak v. GM, LLC, a case brought under the ADEA, although the court affirmed the district court’s grant of summary judgment, it found that the plaintiff’s involuntary transfers and work reassignments constituted adverse employment actions where the plaintiff alleged that they impacted his opportunity for overtime, involved inadequate training, required him to supervise difficult employees, required working undesirable hours, failed to utilize his skills, and required him to work by himself.[16] Relying on Muldrow, the court held that two inter-departmental transfers constituted adverse employment actions, even while holding his allegation that he received lower raises and bonuses did not. This case demonstrates that, in the aftermath of Muldrow, courts will view discriminatory transfer claims more favorably than they did previously.    

In stating that the burden of proving that an “adverse employment action” occurred should not be onerous, the Supreme Court also likely impacted the way non-transfer discrimination cases will be analyzed in the future. The court specifically distinguished Muldrow’s case from the “materially adverse,” reasonable person standard adopted in Burlington Northern & Sante Fe Railway Co. v. White.[17] In White, the court held that Title VII’s anti-retaliation provision “covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant,” meaning that “the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”[18] But while the anti-retaliation provisions are designed to prevent employers from taking actions to dissuade employees from asserting their rights under the law, “[t]he anti-discrimination provision ... simply ‘seeks a workplace where individuals are not discriminated against’” based on protected traits, and there is no intent to distinguish “between significant and less significant harms.”[19] It is easy to see how the holding and rationale of Muldrow can be used to establish that other employment actions short of discharge, pay decreases, and even job transfers constitute adverse employment actions giving rise to a federal discrimination claim.  

Of course, the extent of the harm suffered by employees alleging discrimination will still be an important factor in “weeding out” weak employment cases. Not only must employees still articulate “some harm” that disadvantaged them in the workplace, but, perhaps more practically, employees alleging discrimination will still need to effectively demonstrate harm in order to prove that damages are warranted. Still, the court’s decision in Muldrow sends a clear message that, in making out a prima facie case of discrimination under the federal employment statutes, the focus should be more on the discriminatory nature of the acts of the employer than on the extent of the harm suffered by the employee.

Maha M. Ayesh is the associate dean for academic affairs and an assistant professor at the Lincoln Memorial University (LMU) Duncan School of Law. Prior to joining LMU Law in 2020, she worked for several years as a plaintiffs-side employment litigator in Knoxville.