On April 17, 2024, in Muldrow v. City of St. Louis, Missouri, et al., the U.S. Supreme Court made it easier for employees to prove their forced job transfer discrimination claims. The Supreme Court held that an employee need only show that their transfer caused “some harm” to an identifiable term or condition of employment under Title VII, expressly rejecting a significant harm standard previously adopted by many federal circuit courts. Employers can expect litigation over the meaning of “some harm,” and lower courts may apply this lowered proof standard when evaluating other adverse employment changes under Title VII and other federal anti-discrimination laws. Is this a watershed moment? I dare say, “No.” Yes, there may be more litigation as the lower courts flush out this new standard; however, employees must still tie the harm, even if only “some harm,” as opposed to a “significant harm,” to a protected classification under Title VII or other civil rights statutes.

It’s important to note at the outset that not all transfers, and not all actions taken by employers, will fall into the new “some harm” silo. That will be hurdle number one for disgruntled employees. Title VII still permits employers to make legitimate, non-discriminatory decisions as to the terms or conditions of employment. So as to safeguard your company against future lawsuits, here are a few tips and observations for employers to consider, all of which circle back to tip number one.

1. Simply Put, Don’t Make Decisions Based Upon a Protected Classification: In Muldrow, it stood undisputed that “[i]n 2017, the new Intelligence Division commander asked to transfer Muldrow out of the unit so he could replace her with a male police officer.” The district court and Eighth Circuit found that Muldrow failed to hold an actionable Title VII sex discrimination claim because her transfer did not cause her to lose rank or pay. Her “responsibilities, perks, and schedule” did change, changes the parties agreed were “some harm,” but not “significant harm.” Justice Elena Kagan, in the Supreme Court’s opinion reversing the lower courts (9-0 as to the judgment; 6-3 as its reasoning), held that “[t]o demand ‘significance’ is to add words—and significant words, as it were—to the statute Congress enacted.” Although a change in the legal landscape, it is not a “significant” change in the sense that an employer can simply avoid a lawsuit like this one if it does not make decisions based upon protected classifications. It was not that the employer transferred Muldrow, which potentially caused “some harm,” that created an actionable lawsuit. Rather, it was because a transfer occurred based upon Muldrow’s sex that she holds an actionable Title VII sex discrimination action. This concept is consistent with the Supreme Court’s recent decisions in the higher education arena, e.g., Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College (Harvard) and SFFA v. University of North Carolina (UNC), where the U.S. Supreme Court held that the Harvard and UNC admissions programs, (which factored in  race at various stages in the process) violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. It should come as no surprise that a decision based on sex, like those based on race, runs afoul of the law.

2. Not Every Harm is “Some Harm”: Justice Kagan writes, “The transfer must have left her worse off, but need not have left her significantly so.” She then notes, in remanding the case for further proceedings, that “some of the allegations Muldrow made about the nature of the work she did in her old and new jobs lacked adequate evidentiary support.” Justices Samuel Alito’s and Clarence Thomas’s concurrences in the judgment agree that the U.S. Court of Appeals all articulate a similar principle, one that did not require “significant harm,” but rather, that a plaintiff bringing a Title VII claim must show harm that is more than “trifling.” Although Justice Kagan’s majority opinion did not address this nuance head on, it bears to reason that a transfer, or change in another term or condition of employment that is merely trifling may still not be enough to raise an actionable Title VII claim. Justice Thomas only agreed to join the 9-0 decision, and remand, because there existed the possibility that the Eighth Circuit applied a “material” and/or “significant” harm standard. As Justice Alito notes, it is difficult to decipher the meaning of the new requirement: “Title VII plaintiffs must show that the event they challenge constituted a ‘harm’ or ‘injury,’ but that the event need not be ’significant’ or ‘substantial.’” The lesson learned here is that it still remains true that not all harms are actionable; rather, “some harm” must still alter a term or condition of employment, but it need not be “material” or significant.” A “trifling” impact still does not appear to meet that standard. The lower courts will likely struggle with this directive. Thus, the true lesson: avoid decisions based upon a protected class. If followed, then your business need not be the test case on what “some harm” means under the Muldrow decision.

3. A Discriminatory Transfer Based Upon a Protected Classification, Almost Always, and Possibly Always, Creates an Actionable Title VII Case: Justice Brett Kavanaugh’s concurrence in the judgment notes, “the issue here is not complicated,” “[A] transfer made on the basis of the employee's race, color, religion, sex, or national origin violates Title VII.” Although Justice Kavanaugh disagreed with the Supreme Court’s new “some harm” standard, he still signed on as a concurrence as to the judgment, not a dissent. Thus, “some harm,” is now the law of the land with regards to an actionable Title VII claim as to terms or conditions of employment. Justice Kavanaugh concludes, “So even though I respectfully disagree with the Court's new some-harm requirement, I expect that the Court's approach and my preferred approach will land in the same place and lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100.” The district courts will now need to grapple with the question of what other changes in the terms or conditions of employment stand akin to an unwanted, somewhat harmful transfer, and create an actionable Title VII action. But, again, if the decision stands rooted in a legitimate, non-discriminatory reason, then it does not matter.

Please contact Paul C. Sweeney or another member of Ice Miller LLP's Workplace Solutions Group if you have any questions regarding Title VII and other federal anti-discrimination laws.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.