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The U.S. Supreme Court鈥檚 recent decision in Muldrow v. City of St. Louis lowered the bar that an employee must meet to show that a job transfer violates Title VII of the Civil Rights Act of 1964. In the wake of the court鈥檚 decision, transferring an employee to a different position (even if there is no decrease in rank or pay) could violate Title VII if it is discriminatory and results in 鈥渟ome harm.鈥�

From significant harm to some harm

In Muldrow v. City of St. Louis, Sergeant Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department鈥檚 specialized Intelligence Division. After a new Intelligence Division commander came on board, he asked the department to transfer Muldrow out of the unit so he could replace her with a male police officer. The department approved the transfer against Muldrow鈥檚 wishes and reassigned her to a uniformed job elsewhere in the department. Muldrow鈥檚 new position did not decrease her salary or rank and she still had a supervisory role where she participated in investigating serious crimes. However, the job transfer did involve a change in schedule, the loss of a company car, and a modification in her job responsibilities. Muldrow argued that the changes resulting from the job transfer also meant her position was more administrative and less prestigious than before.

Muldrow sued her employer to challenge the transfer, alleging that the transfer constituted unlawful discrimination based on sex in violation of Title VII. Under Title VII, employers are prohibited from discriminating against any individual for their race, color, religion, sex, or national origin with respect to their compensation, terms, conditions, or privileges of employment. The lower courts held that Muldrow鈥檚 claim failed because she needed to, but could not, show that the transfer caused a materially significant disadvantage, reasoning that the transfer 鈥渄id not result in diminution to her title, salary, or benefits鈥� and had caused 鈥渙nly minor changes in working conditions.鈥�

However, the U.S. Supreme Court disagreed with the lower courts and held that Title VII prohibits discriminatory job transfers even if the job transfer does not cause a harm that is significant, serious, substantial, 鈥渙r any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.鈥� The court reasoned that Title VII鈥檚 text does not establish a high bar of significant or substantial harm. Instead, the court held that an employee challenging a job transfer under Title VII need only show some harm incurred from a forced job transfer, but that harm need not be 鈥渟ignificant.鈥� Although the court did not provide much guidance or explanation on what constitutes 鈥渟ome harm,鈥� it did reason that if a transfer was discriminatory and left the employee worse off in some way with respect to their employment terms or conditions, it violates Title VII鈥檚 prohibition on discrimination.

Key takeaways for employers

The court鈥檚 broad decision could also result in the 鈥渟ome harm鈥� standard being applied to any changes to employment terms or conditions that are alleged to be discriminatory (not just job transfers). Any job transfer or other employment decision 鈥� even one that does not change salary, benefits, ranking, or any significant aspect of a job 鈥� may be an actionable employment discrimination claim.

Moving forward, employers should be diligent when it comes to employee job transfers, even where an employee鈥檚 pay, rank, and benefits would stay the same. Employers should carefully consider all employee job transfers (especially forced transfers) and take cautionary steps when deciding to transfer employees. Examples of cautionary steps employers could consider implementing include clear communication and documentation regarding the reasons for the transfer, evaluating whether the reasons for transfer could be viewed as discriminatory (i.e., based on a protected characteristic), and establishing an evaluation system for job transfers to weigh any potentially conflicting circumstances. Additionally, providing training to update supervisors or other individuals responsible for transfers of best practices may minimize the risks of employment discrimination claims arising out of changes to employee terms and conditions of employment, including job transfers. Lastly, employers could consider reaching out to competent counsel with questions to minimize the risk that a transfer could be viewed as discriminatory and cause 鈥渟ome harm鈥� with respect to an identifiable term or condition of employment.

Natalie Pattison is a Barran Liebman LLP attorney. She counsels and represents employers on a wide range of employment and labor matters. Contact her at 503-276-2104 or聽[email protected].

Iesha Comia is a law clerk with Barran Liebman LLP. She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks. Contact her at 503-276-2117 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.