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A recent U.S. Supreme Court case examined the question of whether an involuntary job transfer can be discriminatory even if the employee’s pay and job title remain the same. The answer? Yes. Historically, most courts, including the Eleventh Circuit, required an employee to have suffered a “significant” employment disadvantage from any involuntary transfer for an employee’s discrimination suit to survive. Under this standard, if an employee’s pay and title remained the same, a discrimination lawsuit would typically not survive.
But the U.S. Supreme Court has turned that standard upside down in the case of Muldrow v. City of St. Louis, Mo. Sergeant Muldrow, the plaintiff, was transferred to a less prestigious assignment, which came with fewer material perks and a less desirable work schedule. Even though her title and pay remained the same, she sued, claiming she was only reassigned because she is a woman. The lower courts held that her lawsuit could not proceed—they found that the changes imposed by the reassignment “appear to be minor alterations of employment rather than material harms” and that she could not demonstrate a “significant change in working conditions producing material employment disadvantage.”
The U.S. Supreme Court, however, rejected this standard, finding that Title VII requires no such demonstration of “significance” to support a discrimination claim. The Court did reiterate that the employee still must show some injury concerning the terms or conditions of her employment—“[t]he transfer must have left her worse off, but need not have left her significantly so.” Sergeant Muldrow’s case will now return to the trial court to proceed under this clarification.
The concurring opinions take issue with the standard created by the majority opinion, as it provides little guidance as to what precisely constitutes an actionable harm. The concurrences highlight the difficulty in determining what an injury is when the lens is broadened to include more than subjective and tangible things such as pay and rank. Justice Thomas, for example, opined that the standard should be that “a plaintiff must have suffered an actual disadvantage as compared to minor changes—i.e., more than a trifling harm.” Justice Alito, getting more directly to the same point, wrote that with respect to the new “injury” threshold, he has “no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.” Finally, Justice Kavanaugh “disagree[d] with the Court’s new some-harm requirement” and proposed his own:
“[A]nyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some additional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”
Going forward, employers across the country must be mindful of the majority opinion’s standard when considering whether to implement involuntary transfers or reassignments, particularly if that employee is a member of a protected class or has engaged in protected activity. Employers should also stay tuned to see how the courts in their jurisdiction interpret the new standard.
