On April 17, 2024, the United States Supreme Court issued its much-anticipated decision in Muldrow v. City of St. Louis. In a 9-0 decision, with three concurring opinions, the Court sided with Muldrow and held that a Title VII plaintiff need only show they suffered “some harm” as the result of a forced lateral transfer, not “significant” or “substantial” harm.
Background
Muldrow, a female, was a sergeant in the Intelligence Division with the St. Louis Police Department. She was involuntarily transferred to a different division. Muldrow challenged the transfer alleging it was because of her sex. After the transfer, Muldrow’s pay and rank remained the same but her responsibilities, perks, and schedule changed. She alleged her transfer resulted in her having to work weekends, losing her FBI status, and having fewer opportunities for upward mobility.
The U.S. District Court for the Eastern District of Missouri granted summary judgment in favor of the Police Department. The court determined Muldrow did not demonstrate the transfer caused a “significant” harm resulting in a material employment disadvantage. The Eighth Circuit upheld the lower court ruling, also concluding Muldrow’s transfer did not result in the requisite “significant disadvantage.”
The Supreme Court’s Decision
The question before the Court was whether the harm in a Title VII intentional discrimination case is the discrimination itself, as Muldrow argued, or if a plaintiff must demonstrate “significant harm” as a result of the allegedly discriminatory action.
The Supreme Court decided the answer was somewhere in the middle. In analyzing the text of Title VII, the Supreme Court concluded that a plaintiff who is subject to a transfer does not have to show the resulting harm they suffered was significant, serious, substantial, or “any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Instead, the plaintiff must only show that there was “some harm respecting an identifiable term or condition of employment.”
The Court did not explain exactly what it meant by “some harm,” but we do know it is less stringent than a significant, substantial, or material harm. The court also did not explain whether the “some harm” should be measured objectively, subjectively, by a reasonable person, or another measure. In his concurring opinion, Justice Kavanaugh suggested that “anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some additional harm[.]”
Somewhat helpfully, the Court stated that plaintiffs must still show their employer acted for discriminatory reasons. And, when courts are assessing whether an employer acted discriminatorily, the Court stated that they may conclude that a “less harmful act” is not suggestive of intentional discrimination.
Notable Takeaways of the Muldrow Decision
The Court opined that it did not anticipate its decision would result in an uptick of litigation, but recognized that even if the floodgates did open, it “would be the result of the statute Congress drafted.” However, at minimum, the lower standard does open the door for additional litigation over forced lateral transfers that were not previously seen as material or significant.
Further, the Court’s opinion is broad enough that the “some harm” standard could be applied under other circumstances. As such, it could pave the way for courts to apply the lower standard to other alleged employment actions related to terms and conditions of employment; for example, assignment of work, re-assignment to another work site, shift change, or other opportunities.
Given that the new standard remains ambiguous, it will likely take time for lower courts to apply the “some harm” standard and provide employees and employers with a clearer picture of the types of harms that are mere trivialities, and therefore, not actionable under the “some harm” standard. It is also worth noting that other U.S. Courts of Appeal—including the Fifth, Sixth, and Ninth Circuit, among others—have already softened their stance on the harm requirement. For those circuits, the effect of Supreme Court’s ruling may be more semantic than substantive.
Until this clearer picture is painted, employers are likely to see additional litigation over employment decisions not previously thought to be actionable.
Potential Impacts for Employer DE&I Initiatives
Those who have been tracking the Muldrow case have flagged it as a decision that could result in increased risk for some DE&I initiatives. While the decision did not directly address DE&I initiatives, it suggests that anyone alleging a reverse discrimination claim tied to a DE&I initiative must show some harm, but not “significant harm.” Given this, Employers should evaluate, in consultation with legal counsel, whether any of their current DE&I initiatives could result in “some harm” to their employees based on any status protected under Title VII and continue to monitor this space for additional clarity in the future.
If you have any questions about how this ruling impacts your business, please contact your Michael Best team.