SCOTUS Eases the Standard for Proving a Discriminatory Job Transfer under Title VII

By: Oyvind Wistrom

Earlier this week, the U.S. Supreme Court resolved a split in the circuits as to whether an employee is required to show a “significant” injury or harm in connection with a job transfer to meet the threshold for proving an adverse employment action under Title VII of the Civil Rights Act of 1964.  The Court rejected the “significant” injury standard, and adopted a new standard that only requires an employee who is involuntarily transferred from one position to another to show that he/she suffered some harm to satisfy the adverse employment action prong of his/her case.

The case was brought by Jatonya Muldrow, a police sergeant who claimed she was transferred from her job as a plainclothes police officer in the intelligence section of the St. Louis Police Department because she was a woman.  Muldrow worked in the Intelligence Division from 2008 until 2017, where she investigated public corruption and human trafficking cases.  She also oversaw the Gang Unit, served as head of the Gun Crimes Unit, and was assigned as a task force officer with the FBI.  Despite her high employment evaluations, a new unit commander transferred her out of the Intelligence Division, justifying the transfer, in part, by noting that the division’s work was “very dangerous.”  Over her objections, Muldrow was reassigned to a uniformed job in another district where she supervised the activities of neighborhood patrol officers — approving arrests, reviewing reports and handling other administrative matters.

Though her pay and rank remained the same, Muldrow sued the police department, asserting that she had been harmed by the transfer.  Because she was no longer in the Intelligence Division, she lost her FBI status and the car that came with it, and in the new job Muldrow often had to work nights and weekends, instead of the Monday-through-Friday workweek she had worked in the intelligence unit.

Although the district court and the court of appeals both granted summary judgment for the police department, the Supreme Court reversed and remanded the case noting that the words “discriminate against” contained in Title VII refer to “differences in treatment that injure” an employee.  In a typical transfer case, that worse treatment may involve a reduction in pay or benefits, but such economic or tangible effects are not necessarily required where the employee can show that the transfer resulted in some harm.  Writing for the Court, Justice Elena Kagan explained that as long as an employee can show some harm because of sex, race, religion or national origin, that is enough. “Had Congress wanted to limit the liability for job transfers to those causing a significant disadvantage, it could have done so,” wrote Kagan, adding that the court “does not get to make that judgment” by rewriting the statute.

This decision represents a sharp departure from the previous standard that had been followed by the Seventh Circuit Court of Appeals, which covers Wisconsin, Indiana and Illinois.  All employers covered by federal anti-discrimination laws must now be careful to ensure that employment transfers that could be shown to be motivated by the employee’s membership in a protected class do not result in any harm or diminution in responsibilities or status as to avoid liability under Title VII.