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June 11, 2024
NEW RULE: Title VII claimants need demonstrate only that they experienced harm as a result of a change in working conditions, and that the change resulted from sex-based discrimination. Any harm will suffice, no matter how slight, insignificant, de minimus, or unintentional it may seem to the perpetrator.
EMPLOYERS BEWARE: If you mandate any change to an employee’s working conditions (schedule, position, job responsibilities, fringe benefits, etc.), and the reason for your decision relies on the employee’s sex, your employee could have a viable Title VII discrimination claim.
THE COURT CASE: Sergeant Jatonya Muldrow’s reputation as a capable, reliable, “workhorse” couldn’t save Muldrow’s job within the St. Louis Police Department’s Intelligence Division when a newly appointed police commander wanted to replace Muldrow (a female) with a male officer who the commander thought was more suited to the “very dangerous” assignments that Muldrow had been performing, with numerous accolades, for the previous nine years. Against Muldrow’s wishes, Muldrow was shuffled to a new, less prestigious job within a different unit, relegated to supervising the ordinary activities of neighborhood patrol officers, required to wear a uniform and work a different (less favorable) schedule, lost access to overtime hours and pay, divested of the rights and privileges of being an FBI liaison, deprived of networking opportunities, and lost “perks,” such as a take-home car. Following Muldrow’s transfer, the new Intelligence Division police commander humiliated Muldrow by calling Muldrow, Muldrow’s FBI supervisors, and Muldrow’s new Police Department supervisor to ensure that Muldrow returned the previously issued take-home car and FBI credentials, even though similar calls were not made to a similarly situated male officer or his supervisors and the male officer was given the opportunity to retain federal agency credentials and overtime hours and pay. Muldrow filed a Charge of Discrimination. Subsequently, Muldrow attempted to transfer to, and was selected for, other positions in the Police Department that, in Muldrow’s view, would have restored some of the prestige and provided more favorable working conditions, but these transfers were not approved. After eight months, Muldrow was transferred back to the Intelligence Division, regained the position and credentials as an FBI liaison, and withdrew all applications for a different transfer.
After receiving a right-to-sue letter, Muldrow filed suit against the City of St. Louis, alleging in part, that, by transferring Muldrow, the City discriminated and retaliated against Muldrow on the basis of Muldrow’s sex, in violation of Title VII of the Civil Rights Act of 1964 (Title VII). The U.S. District Court for the Eastern District of Missouri granted summary judgment for the City. The U.S. Court of Appeals for the Eighth Circuit affirmed. Both courts found that, because Muldrow’s rank, salary, and future employment opportunities remained the same, Muldrow could not prove that the less prestigious job responsibilities, the schedule change, the reduction in fringe benefits, the removal of FBI credentials, the loss of networking opportunities, and the refusal to transfer Muldrow to the position of Muldrow’s choosing constituted “an adverse employment action” or “a tangible change in working conditions that produces a material employment disadvantage” under Title VII because those changes were not serious, or significant, or material. Muldrow v. the City of St. Louis, No. 4:18-CV-02150-AGF, 2020 U.S. Dist. LEXIS 166560, at *20 (E.D. Mo. Sept. 11, 2020), affirmed, 30 F.4th 680, 688 (8th Cir 2022). The lower courts’ rejection of Muldrow’s claims rested not on whether gender discrimination or a change in working conditions actually occurred, but rather on whether the harm suffered by Muldrow was “too minor” to support a claim under Title VII.
As discussed in my article earlier this year, U.S. Supreme Court Watchlist: On the eve of Title VII’s 60th Birthday, the Court Re-Examines the Standard for the Statute’s Ban on Employment Discrimination, federal courts have been quietly expanding the right of workers to sue for workplace bias and discriminatory actions under Title VII. The waves of change reached a crescendo late last year when the U.S. Supreme Court granted a writ of certiorari in Muldrow’s case, “to resolve a Circuit split over whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm—be it dubbed significant, serious, or something similar.” Muldrow v. City of St. Louis, 144 S. Ct. 967, 973 (2024).
This past spring, with a 9-0 decision authored by Justice Elena Kagan, the highest court of the land struck the final nail in the coffin of the requirement that claimants demonstrate “significant,” “serious,” or “materially adverse” harm to prevail on a Title VII claim, holding, instead, that “the text of Title VII imposes no such requirement.”
In a nutshell, the Supreme Court’s decision in Muldrow didn’t rely on the recitation of facts above—not the uncontested discrimination nor the unassailable causal connection between the unapologetic gender bias and the indisputable change in working conditions. (In my view, those factors, alone, could have skewed the legal decision in favor of Sergeant Muldrow.) Rather, the Supreme Court’s opinion rose and fell on statutory interpretation. The plain language of Title VII Section 2000e-2(a)(1) prohibits ALL discriminatory employment practices:
Employer practices
It shall be an unlawful employment practice for an employer –
(1) 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.
As Justice Kagan’s opinion points out, the statute says nothing about the quantity or quality of harm that an aggrieved individual must endure to bring a claim, and adding a materiality requirement injects subjectivity and personal bias:
As appellate decisions reveal, the answers can lie in the eye of the beholder—and can disregard varied kinds of disadvantage. Take just a few examples from the caselaw. An engineering technician is assigned to work at a new job site—specifically, a 14-by-22-foot wind tunnel; a court rules that the transfer does not have a “significant detrimental effect.” Boone v. Goldin, 178 F. 3d 253, 256 (CA4 1999). A shipping worker is required to take a position involving only nighttime work; a court decides that the assignment does not “constitute a significant change in employment.” Daniels v. United Parcel Serv., Inc., 701 F. 3d 620, 635 (CA10 2012). And a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not “significant.” Cole v. Wake Cty. Bd. of Educ., 834 Fed. Appx. 820, 821 (CA4 2021) (per curiam). All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require. Muldrow v. City of St. Louis, 144 S. Ct. at 974-975 (emphasis added).
In an effort to circumvent the “plain reading” of the statute, the City of St. Louis turned to Title VII’s sentence structure, Supreme Court precedent in a similar context, and warnings about opening the floodgates of Title VII litigation.
Specifically, the City of St. Louis argued that the placement of the phrase “or otherwise to discriminate” in Section 2000e-2(a)(1) (e.g., after “to fail or refuse to hire or to discharge”) implies that, to be cognizable, employment actions must cause the same level of harm as hiring or firing decisions, which severely disadvantage an employee.
Next, the City of St. Louis argued that—because prior Supreme Court precedent required a finding of “significant harm” in the context of Title VII’s anti-retaliation provisions—this same standard also must be required in the context of Title VII’s anti-discrimination provisions.
Finally, the City warned that if the Supreme Court failed to impose a “significant –injury requirement,” then the courts would be overrun with complaints from litigants who suffered de minimus harm as a result of a discriminatory employment decision.
Justice Kagan rejected each of these arguments, pointing out:
As we noted in another Title VII decision, we will not ‘add words to the law’ to achieve what some employers might think ‘a desirable result’…Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so. By contrast, this Court does not get to make that judgment.” Id. at 976 (emphasis added), citing EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).
In sum, sixty years after Congress first passed Title VII, employers no longer have the discretion to evaluate whether a discriminatory employment decision will cause significant, serious, or material harm. Rather, employers can avoid liability by avoiding the very conduct that VII was designed to address – treating similarly-situated employees differently on the basis of a protected characteristic.
The author of this article, Helena Ciechanowski, is a member of the Bars of Pennsylvania and New Jersey. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, New Jersey, Missouri, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
