Supreme Court: Discrimination Plaintiffs Need Only Show "Some" Harm to State a Claim

In a long-awaited and highly anticipated opinion, the Supreme Court held that a Title VII claimant alleging a discriminatory job transfer must only show that the transfer caused “some” harm with respect to the terms and conditions of her employment. In Muldrow v. City of St. Louis, the high court rejected the heightened standard adopted by the Eighth Circuit requiring “materially significant” harm, as being contrary to the law’s plain language.

Background

The facts of this case illustrate why Muldrow was the perfect case for challenging the Eighth Circuit’s heightened standard. The record depicts Muldrow as a rockstar detective within the St. Louis Police Department. She worked in the Intelligence Division, a leader in both the Gang Unit and the Gun Crimes Unit, and she was deputized to work on a prestigious FBI task force, a “premier position” in the Department. Muldrow was described as a reliable “workhorse” and her performance reviews were consistently outstanding.

Despite all these positive reviews of Muldrow, her new boss, Commander Deeba, requested she be transferred out of the Intelligence Division when he took over. He stated that a different officer, who happened to be male, would be a “better fit” for the dangerous work in the Intelligence Division. Deeba also frequently did not use Muldrow’s title of “Sergeant” and referred to her as “Mrs.” Even though Muldrow did not wish to transfer to a different department, the St. Louis Police Department approved Deeba’s request and Muldrow was given a uniformed position in the Fifth District. This new position, while equal in rank, salary, and benefits, was not considered to be as prestigious, and Muldrow’s responsibilities were significantly different from her previous position. She also worked on a “rotating schedule” that included weekend shifts, instead of her previous regular Monday through Friday schedule. She also lost access to her take-home police vehicle.

Sergeant Muldrow’s Title VII Claim

Muldrow brought a Title VII claim against the City of St. Louis claiming she was removed from her position at the Intelligence Division due to her sex, which adversely affected the terms and conditions of her employment. In her complaint, she states she lost both professional opportunities and material benefits of her job as a result.

The District Court granted the City summary judgment, and the Court of Appeals affirmed, stating that Muldrow could not meet her burden of showing a “materially significant disadvantage” as a result of her transfer. Both lower courts held Muldrow’s Title VII claim could not be supported by “only minor changes in working conditions,” and failed to adduce evidence that claimed losses of networking opportunities actually harmed her career prospects. As she continued to be a supervisor in her new role, her job duties were largely the same, said the District Court, as it disregarded or found immaterial the facts about her new schedule or lack of a take-home car. As a result, she could not establish that the harm incurred was “significant.”

Supreme Court’s Holding and Analysis

The language of Title VII and Supreme Court precedent, such as in Oncale v. Sundowner Offshore Services, Inc., for example, requires Muldrow to show that her transfer caused “some” negative change in the terms or conditions of employment. The “materially adverse” employment action standard has been applied by various Courts in determining whether a plaintiff states a claim, consistent with the Eighth Circuit approach. But the Supreme Court has now taken a broader view of “terms and conditions” of employment to include less valuable, less tangible benefits of employment. And the plain language of Title VII does not require a claimant to show that a negative employment action, such as Muldrow’s transfer, caused “significant” harm.

The Court rejected the City’s main textual arguments. Title VII’s prohibition on hiring, firing or “otherwise to discriminate against” a person based on a protected class does not mean that only job actions on the level of hiring or firing fit the bill. Rather, harmful discrimination can result from a multitude of employment actions. The Court also rejected the City’s argument that the Court’s 2006 holding in Burlington Northern v. White, established a “significant harm” standard. This holding only applies under Title VII’s anti-retaliation provision when a retaliatory action has consequences that are “materially adverse” and cause “significant harm.” Since this a transfer challenge under the “terms and conditions” of employment provision, Muldrow is not required to show the job transfer caused material, significant harm. She must only show that some harm resulted.

The City also argued, unsuccessfully, that a “significant harm” standard is necessary to protect the already overwhelmed court system from another flood of Title VII litigation. The Court rejected this argument and stated there are several other ways to dismiss frivolous Title VII claims.

Big Takeaways

• The City was likely right that allowing plaintiffs to proceed with claims without demonstrating a “significant” harm will cause an uptick in Title VII litigation. The fee-shifting provisions of Title VII and § 1981 will very likely make claims with tiny damages more attractive to the plaintiffs’ bar. Courts should be mindful, however, that the attorney’s fees are discretionary and should limit fee awards in proportion to the plaintiff’s recovery as a bulwark to a flood of Title VII litigation. Indeed, unlike FLSA litigation where plaintiffs recover relatively small sums with large fee awards, nominal harm under Title VII should not result in massive fee awards.
• The Court stated that “terms and conditions of employment” under Title VII should be interpreted broadly, so employers cannot seek shelter in the fact that an employee’s salary and title remain the same. Although not addressed by the Court, it would appear that reputational harm (e.g., the mere fact of a change to employment terms and conditions) will be sufficient to state a claim for damage under Title VII.  Changes to scheduling, perks, opportunities for advancement, and prestige, and anything of value to employees other than money will be sufficient to state a claim.
• The opinion’s focus on “discrimination” as meaning any differential treatment, regardless of harm may lend credence to concerns that the Court is moving away from Title VII’s remedial purpose in implementing the Reconstruction Amendments. Muldrow, along with Students for Fair Admissions v. Harvard (which does not address Title VII), may add ammunition to challenges to workplace Diversity, Equity and Inclusion (DEI) efforts.
• Numerous lawsuits have already been filed alleging “reverse discrimination” and other non-traditional discrimination claims. The next few years could significantly change the legal landscape when it comes to employers’ efforts to address the needs of historically disadvantaged groups. However, the decision in Muldrow provides little clarity to employers navigating the minefield of both recruiting diverse talent and avoiding litigation.