Picture this: You're just about set to open a new workplace in Smallsville. The only hurdle remaining is finding the right person to manage the new location. After giving this problem considerable thought, you think you've come up with the perfect solution. You'll transfer your manager, George, in Everytown to Smallsville and promote George's number two, Ada, to run the Everytown operation. George will keep his job title, his compensation and benefits will remain the same, and he will still have the opportunity to climb the corporate ladder. What's not to like? A lot, apparently. Because after a few months in Smallsville, George has filed a charge with the Equal Employment Opportunity Commission alleging that you discriminated against him on the basis of sex when you transferred him and replaced him with Ada. But wait a second, you think, George can't sue us because he wasn't harmed by the transfer—he kept his title, pay, benefits, and career prospects. Right? Under the Supreme Court's latest decision, you are most likely wrong.
Lowering the Standard: "Some" Harm Is Enough Harm
On April 17, 2024, the Supreme Court issued its much-anticipated decision in Muldrow v. City of St. Louis, and dramatically lowered the standard for an employee to prove workplace discrimination in connection with a forced transfer and other employment actions. Title VII provides that employers may not discriminate against their employees because of their race, color, religion, sex, or national origin. Prior to Muldrow, many courts required plaintiffs alleging a discriminatory transfer or other employment action to show that the transfer caused a significant or materially detrimental harm to the employee.
In Muldrow, an employee of the St. Louis Police Department alleged that she had been discriminated against when she was involuntarily transferred and replaced with a male police officer. While Muldrow's compensation, benefits, title, and career prospects were not changed by the transfer, other aspects of her employment were impacted. Muldrow was moved into a less prestigious position, had fewer opportunities to work on important investigations, and lost her take-home car.
Rejecting the decision of the lower court, the Supreme Court held that Muldrow's alleged harm was enough under Title VII. The Court held that Title VII does not require employees to prove that the harm caused by a transfer was significant, serious, or substantial—just that "some" harm occurred. Indeed, the Court explained that to trigger Title VII, the transfer must have left Muldrow worse off, but need not have left her significantly worse off. Applying the new "some harm" standard, the Court held that Muldrow's allegations of changes to her responsibilities, perks, and schedule easily cleared the "some harm" test—even though her rank, title, pay, and benefits remained the same.
Employer Impact
The Supreme Court's Muldrow opinion represents a stark shift in employment discrimination law and will significantly lower the bar employees must clear in order to show that a transfer or other employment action negatively affected the terms and conditions of their employment. Indeed, the Supreme Court explicitly recognized that the decades-old harm standards of many Circuit Courts across the country are now invalid. For example, the Fourth Circuit required employees to show a "significant detrimental effect," the Second Circuit required a "materially significant disadvantage," and the Eleventh Circuit mandated a "serious and material change."
The Supreme Court provided limited insight into the practical effects of the change, but did indicate that in each of the following scenarios, an employee whose claim failed under an old "significant harm" standard would now succeed under the new "some harm" standard:
- An engineering technician is assigned to work a new job site—specifically, a 14-by-22-foot wind tunnel
- A shipping worker is required to take a position involving only nighttime work
- A school principal is forced into a non-school-based administrative role supervising fewer employees
Additionally, in his concurring opinion, Justice Kavanaugh suggested that employees will easily be able to show "some harm" through a change in any of the following: money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, or effects on family obligations.
While it will take time to see exactly how courts apply the Supreme Court's new, lower, "some harm" standard, employers should begin reviewing involuntary transfers and other job actions with a heightened level of care. As always, employers should ensure that transfers and other employment decisions are made for legitimate, non-discriminatory reasons—and that those reasons are well documented. If you or your company have any questions about the Court's latest changes to Title VII, or how to best perform employee transfers while reducing the risk of liability, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.