This morning, in a long-awaited decision without any dissents, the Supreme Court reversed the summary judgment dismissal of a sex discrimination lawsuit on the grounds that the plaintiff is not required to prove that an involuntary lateral transfer significantly affected the terms and conditions of her employment. Muldrow v. City of St. Louis, MO, No. 22-193 (4/17/24). In particular, the plaintiff alleged that, even though her pay and title remained the same after the transfer, she was denied the use of an unmarked vehicle to use after her shift, was required to sometimes work weekends and no longer worked with higher ranking officers. “Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.” Nonetheless, the Court observed that the significance of the changed working conditions may be considered in assessing whether the employer intentionally discriminated. “[A] court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination.”
According to the Court’s opinion, when a new commander took
over, the plaintiff was involuntarily transferred from a plainclothes officer
position in the Intelligence Division (where she had worked for almost 10
years) to a uniformed officer position in another department supervising patrol
officers. The new commander allegedly
called her “Mrs.” instead of “Sergeant” and indicated that a male officer was
better suited for the Division’s dangerous work. Her
pay and rank remained the same following the transfer. However, she “no longer worked with
high-ranking officials on the departmental priorities lodged in the
Intelligence Division” and “also lost access to an unmarked take-home vehicle
and had a less regular schedule involving weekend shifts.” She lost a “prestigious” role for an “administrative”
role. She alleged that she was transferred
because of her sex in violation of Title VII.
However, the trial and appellate courts granted judgment to the city
employer on the grounds that she had not suffered any materially significant
adverse affects from the transfer and she only suffered minor changes in her
working conditions. The Supreme Court reversed.
The plaintiff’s involuntary “transfer . . . implicated “terms” and “conditions” of [her]
employment, changing nothing less than the what, where, and when of her police
work.”
Title VII makes it 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, because of such individual’s
race, color, religion, sex, or national origin.” §2000e–2(a)(1).
This “language requires [the plaintiff] to show that the
transfer brought about some ‘disadvantageous’ change in an employment term or
condition. . . . . The words ‘discriminate
against,’ we have explained, refer to ‘differences in treatment that injure’
employees.” Title VII “targets practices
that “treat[] a person worse” because of sex or other protected trait.” The Court has clarified in the past that the “terms
[or] conditions” statutory language “is
not used ‘in the narrow contractual sense’; it covers more than the ‘economic
or tangible.’” Nonetheless, it limits
that kinds of harm that is actionable. “To
make out a Title VII discrimination claim, a transferee must show some harm
respecting an identifiable term or condition of employment.”
What the transferee does not have
to show, according to the relevant text, is that the harm incurred was “significant.”
. . . . Or serious, or substantial, or
any similar adjective suggesting that the disadvantage to the employee must
exceed a heightened bar . . . “Discriminate against” means treat worse, here
based on sex. . . . But neither that
phrase nor any other says anything about how much worse. There is nothing
in the provision to distinguish, as the courts below did, between transfers
causing significant disadvantages and transfers causing not-so-significant
ones. And there is nothing to otherwise establish an elevated threshold of
harm. To demand “significance” is to add words—and significant words, as it
were—to the statute Congress enacted. It is to impose a new requirement on a
Title VII claimant, so that the law as applied demands something more of her
than the law as written. And that difference can make a real difference for complaining
transferees. Many forced transfers leave workers worse off respecting
employment terms or conditions. (After all, a transfer is not usually forced
when it leaves the employee better off.) But now add another question— whether
the harm is significant. As appellate decisions reveal, the answers can lie in
the eye of the beholder—and can disregard varied kinds of disadvantage.
The Court rejected the employer’s policy argument that
removing the significance factor will open the litigation floodgates and
discovery issues:
In the City’s view, a
significant-injury requirement is needed to prevent transferred employees from
“swamp[ing] courts and employers” with insubstantial lawsuits requiring
“burdensome discovery and trials.” . . .
. As we have explained, the anti-discrimination provision at issue requires
that the employee show some injury. . .
. It requires that the injury asserted concern the terms or conditions of her
employment. . . . Perhaps most notably, it requires that the employer have
acted for discriminatory reasons—“because of ” sex or race or other protected
trait. §2000e–2(a)(1). And in addressing that issue, a court may consider
whether a less harmful act is, in a given context, less suggestive of intentional
discrimination. So courts retain multiple ways to dispose of meritless Title
VII claims challenging transfer decisions. But even supposing the City’s worst
predictions come true, that would be the result of the statute Congress
drafted. As we noted in another Title
VII decision, we will not “add words to the law” to achieve what some employers
might think “a desirable result.” . . . Had Congress wanted to limit liability
for job transfers to those causing a significant disadvantage, it could have
done so.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
