Lowering the Bar for Employees with Title VII Discrimination Claims

Employees need not show “significant” harm to sustain discrimination claims.

The U.S. Supreme Court’s April decision in Muldrow v. City of St. Louis, Missouri held that Title VII of the Civil Rights Act of 1964 protects employees who experience discriminatory job transfers as long as they experience some harm as a result of the transfer. In a unanimous ruling, the Court found in favor of petitioner Jatonya Clayborn Muldrow, who alleged that her employer transferred her because she is a woman, in violation of the anti-discrimination provision under Title VII. Although the Court’s decision gives employees a path to assert Title VII claims without having to show any sort of significant harm, it leaves open questions that the lower courts and the Equal Employment Opportunity Commission will continue to grapple with, including what “some harm” means and what other types of actions impact the terms and conditions of employment.

In Muldrow, the Supreme Court faced the question of how to interpret Title VII’s anti-discrimination provision. Section 703(a)(1) makes it “an unlawful employment practice… to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Lower courts had wrestled with which types of employment actions impact the “terms, conditions, or privileges of employment.” This grappling by lower courts led to the development of different standards in the Circuit Courts of Appeals. For example, the Tenth Circuit determined that employment actions must rise to the level of “a significant change in employment status, such as… reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Both the U.S. Courts of Appeals for the Sixth Circuit and the Second Circuit applied a “materially adverse” standard. The Eighth Circuit, the court from which Muldrow appealed, required plaintiffs to show a “materially significant disadvantage” that resulted from an employment action.

In a recent decision, Chambers v. District of Columbia, the D.C. Circuit held that an employee’s transfer or denial of a transfer based on discriminatory reasons—with no additional harm showing—was actionable under Title VII. The Chambers decision overruled D.C. Circuit precedent that had required plaintiffs to show that they suffered an “objectively tangible harm” that resulted from a transfer.

Not surprisingly, these varied standards in the circuit courts led to myriad outcomes across the country. The heightened harm tests allowed courts to dismiss an employee’s claim without having to analyze the often trickier question of whether the employer acted with discriminatory intent, meaning that otherwise potentially meritorious discrimination claims were likely dismissed on this ground alone. Muldrow faced this very hurdle in her case.

Muldrow, a sergeant in the St. Louis Police Department, alleged that she was transferred from the Police Department’s Intelligence Division to a neighborhood patrol unit because she is a woman, in violation of Title VII. According to Muldrow, the job transfer, which resulted in a less desirable work schedule and loss of status and other perks, constituted an adverse employment action. The trial court granted summary judgment to the City of St. Louis, Muldrow’s employer, after the court found, among other things, that Muldrow’s job transfer did not meet the significance test. The Eighth Circuit agreed. It concluded that her job transfer did not constitute an employment action protected by Title VII because Muldrow presented “no evidence that she suffered a significant change in working conditions or responsibilities” and instead had expressed “a mere preference for one position over the other.” Muldrow then appealed to the Supreme Court.

When the Court granted certiorari in June 2023, it narrowly framed the question for review: Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?

The Court’s opinion, delivered by Justice Kagan, rejected the significant disadvantage standard imposed by the Eighth Circuit, and similar formulations of a significant harm test used by other circuit courts. While the Court found in favor of Muldrow, it did not adopt her argument that Title VII’s text required no additional harm because the discrimination itself was the harm. Instead, the Court adopted a standard requiring employees to show “some harm respecting an identifiable term or condition of employment.” The Court reasoned that the specific phrase “discriminate against” in the provision at issue called for a showing of “some harm,” but not significant harm. Because of this reasoning, and despite narrowing the question to job transfers, the Court’s rejection of any significant harm test applies to any action impacting the terms and conditions of employment.

With this new standard, the obvious question becomes, what qualifies as “some harm”? In separate concurrences, Justice Thomas and Justice Alito both suggested that lower courts could go about analyzing these claims as they always have. In a footnote responding to Justice Thomas, although perhaps even more directly to Justice Alito, Justice Kagan stated plainly: The standard has changed; the bar is lower. The prior cases that denied employees’ claims under a significant harm standard should have come out differently—that is, in favor of the employees—as will many other cases under this new standard.

The Court went on to provide specific examples to guide factfinders. It identified three appellate decisions dismissing plaintiffs’ claims for not meeting the adverse employment action requirement under a significant harm test. One case involved an engineering technician who was assigned to a new job site in a 14-by-22-foot wind tunnel. In another, the worker was forced to take a position involving only nighttime work. In the final example provided by the Court, a school principal was transferred to a non-school-based administrative role supervising fewer employees. These cases all showed “some harm,” so, under the new standard, the claims would not have been dismissed for failing to show an adverse employment action. The Court also noted that, assuming Muldrow’s allegations were supported by evidence and properly preserved, her allegations, without question, constituted some harm. As further guidance, Justice Kavanaugh’s concurrence provided a list of consequences that may qualify as some harm, such as impact to convenience, commuting costs, or career prospects, among others.

Although the Supreme Court lowered the bar for employees to bring Title VII claims based on actions that impact the terms and conditions of employment, the decision leaves it to factfinders to resolve outstanding questions, including what constitutes “some harm” under the new standard and what other employer actions impact the terms and conditions of employment. With many commentators hypothesizing about the decision’s impact on employer diversity, equity, and inclusion (DEI) initiatives, some legal experts have stated that the decision does little to advance attacks on DEI initiatives. Others seeking to challenge these initiatives may view the Muldrow decision as advantageous.

What is often lost in these debates is the purpose of Title VII, an important piece of civil rights legislation, which sought to address historical economic injustices faced by Black people by prohibiting workplace discrimination against impacted groups, specifically “women and minorities.” Sixty years later, these groups, and Black women in particular, continue to face hurdles when challenging workplace discrimination. According to a recent study analyzing employment discrimination complaints, Black women were more likely than white women to have their discrimination charges dismissed by the Equal Employment Opportunity Commission, and they recovered less financially than white women. Although Muldrow lowers the bar for employees asserting claims under Title VII, for groups historically impacted by workplace discrimination, Title VII litigation still presents many other challenges, and litigation remains but one avenue needed to combat workplace discrimination.