- Case may hold landmark status. In a unanimous decision, the U.S. Supreme Court found the City of St. Louis violated Title VII of the Civil Rights Act within its police department after an involuntary transfer of a female police officer to a less prestigious position.
- Violation threshold is lowered. Prior to the Court’s decision, the touchstone for proving a violation of Title VII of the Civil Rights Act was proof of an objective, tangible harm.
- Consider several action items. In light of the ruling, employers should be more cautious when making employment decisions even where there is no change in pay, receipt of bonus, level of employment and/or responsibilities.
A unanimous ruling in a recent U.S. Supreme Court case may serve to expand the scope of employment actions that can form the basis for a claim of workplace discrimination.
In the case of Muldrow v. City of St. Louis, Missouri, et al., the Court ruled April 17 that the City of St. Louis violated a worker’s civil rights by involuntarily transferring her from a role within its police department.
Jatonya Clayborn Muldrow sued the St. Louis Police Department for violations of Title VII of the Civil Rights Act after she was transferred in 2017 out of the department’s intelligence division and replaced from her previous role by a male employee.
Muldrow stated in court filings that the former position, which she held for nine years, allowed her to be deputized as an FBI agent, work a steady weekday schedule, and broadly investigate public corruption and human trafficking cases. She said her new assignment lacked the same prestige and benefits. Even though her pay remained the same, she lost her FBI privileges, had to work patrol assignments and was assigned weekend shifts. She claimed gender discrimination was at the root of the transfer.
Employment attorney Consuela Pinto of law firm Pinto Brown expressed the significance of the court’s ruling, stating, “Prior to the Court’s decision, the touchstone for proving a violation of Title VII of the Civil Rights Act was proof of an objective, tangible harm.” She said adverse employment actions that typically met this heightened standard included:
- Terminations,
- Failure to hire,
- Denial of a promotion, or a
- Demotion coupled with a decrease in pay.
In the Muldrow ruling, the Court determined the plaintiff in this case did not need to show the harm they suffered was “significant” — just that the action (in this instance, the transfer) caused “some harm” with respect to an identifiable term or condition of employment.
“This ruling is a game-changer in that it lowers the threshold for a plaintiff/claimant to allege discrimination under Title VII,” said Littler’s Alyesha Asghar, shareholder and co-chair of the firm’s EEO and Diversity Practice Group. “Because many state human right laws mimic Title VII standards, this is also likely to impact the threshold for bringing discrimination claims under those statutes.”
Taken together, Asghar said, “The decision in Muldrow is likely to result in an uptick in discrimination claims and cases where the plaintiffs’ bar will attempt to test the new standard and fill in the lines regarding definition of ‘some harm.’”
Action Items for Employers
In light of the ruling, Asghar and Pinto advised that employers be more cautious when making employment decisions, even where there is no change in pay, receipt of bonus, level of employment and/or responsibilities (i.e., no significant tangible economic impact or ultimate employment decision).
“In a post-Muldrow world, employment decisions beyond the type of supervisor-initiated transfer at issue in the case could also be the basis for an employee to establish an adverse employment action in a discrimination claim,” Asghar said.
Pinto added, “Any claim of discrimination would be stronger if plaintiffs demonstrate that they were [tangibly] harmed in some way by their employer’s discriminatory decisions [i.e., decreased pay and benefits, denial of promotion, etc.]. For this reason, I do not expect to see plaintiffs or their lawyers dropping this argument altogether. I also expect to see employers continuing to argue that the employee suffered no material harm or that the decision was justified.”
In addition, they counseled employers to be increasingly thoughtful about making employment decisions where an employee:
- Is disciplined in a manner that they claim hinders/impacts their career trajectory,
- Loses supervisory responsibility,
- Perceives an impact on their work schedule in such a way as to cause them some harm,
- Is impacted in their job duties in such a way as to experience a loss of prestige and status, and/or
- Loses fringe benefits/perks of employment.
Examine Your DEIB and Other Policies
The Supreme Court’s ruling should encourage employers to look inward and ensure their existing diversity, equality, inclusion and belonging (DEIB), HR, and procurement efforts do not use prohibited protected characteristics as a basis for positions or actions, said Asghar.
To do this, she said, employers should establish clear policies and guidelines that explicitly prohibit discrimination based on protected characteristics, and prioritize merit and skills over irrelevant personal attributes in employment decisions. She also said regular audits and training programs may reinforce a culture of fairness and accountability, fostering an environment where individuals feel valued and respected regardless of their background.
Even with such focus, Asghar mentioned the Muldrow ruling could lead to other worker actions, including claims of reverse discrimination — the practice or policy of favoring individuals belonging to groups known to have been discriminated against previously, such as making hiring decisions in favor of minority groups solely based on race.
Asghar said, “This ruling could certainly lead to more discrimination claims of all sorts as the plaintiffs’ bar tests the definition of ‘some harm’ necessary to establish an adverse employment action under Title VII and its state law mimics.”
Update Your Training and Involve Counsel
Based on the ruling in the case, Asghar asserted that organizations should strongly consider updating the training they provide to all levels of leaders and perhaps provide more in-depth training for HR and in-house legal teams.
At least for the near future — until the “some harm” standard is better fleshed out by the lower courts in a manner that aids predictability — Asghar said employers will need to work more closely with counsel when they are making employment decisions that might trigger claims under the lowered Title VII standard for discrimination claims.
In the longer term, Pinto said employers should expect a general uptick in retaliation claims brought by workers.
“We may see an increase in retaliation claims related to lateral moves made in response to disputes between employees or because the employer has determined based on an employee’s performance that they would do better in a different role or department,” she said.
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