Update: Supreme Court Revises Title VII’s Decades-Old “Adverse Employment Action” Standard for Discriminatory Transfers
In January 2024, we reported on a significant case, Muldrow v. City of St. Louis, Missouri, No. 22-193, which was then pending before the United States Supreme Court. On April 17, 2024, the Court issued its decision in this case and, in doing so, modified the standard required to prove employment discrimination under Title VII of the Civil Rights Act of 1964 with respect to job transfers. See Muldrow v. City of St. Louis, Missouri, 601 U.S. —, 144 S. Ct. 967 (2024).
The Muldrow Ruling
Prior to Muldrow, for a Plaintiff to make out a Title VII discrimination claim based on an alleged discriminatory job transfer, the Plaintiff was required to show that the transfer resulted in some sort of material, objective, or tangible harm to the Plaintiff.
In Muldrow, the Court rejected this notion. The Court’s opinion reiterated the familiar principle that “to make out a Title VII discrimination claim [in the job transfer context], a transferee must show some harm respecting an identifiable term or condition of employment.” However, the Court ruled, a “transferee does not have to show . . . that the harm incurred was “significant[,]” serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”
Notably, the Court did not wholesale adopt Muldrow’s argument that the fact of a transfer alone constitutes discrimination. Rather, the Court reasoned that, to be actionable under Title VII, a “transfer must have left [the Plaintiff] worse off, but need not have left [the Plaintiff] significantly so.” Consequently, a Plaintiff must still show some harm, but need not prove that the identified harm was “significant,” “substantial,” or “material.”
Conclusion
The Supreme Court’s April 2024 decision in Muldrow marks a significant departure from the definition of “adverse employment action” that has been in place for nearly 30 years. When considering employee job transfers, employers should therefore be mindful of the fact that such transfers could potentially be found to constitute adverse employment actions that support an employment discrimination claim. Accordingly, when transferring workers, employers should take steps to articulate and document the business reasons for such transfers, just as they would do with employment terminations.
