“You’re Transferred!” Supreme Court Clarifies a Lower Standard for Discrimination Claims Based on Mandatory Job Transfers

On April 17, 2024, the U.S. Supreme Court held that an employee need not show “significant” harm when pursuing a discrimination claim under Title VII of the Civil Rights Act of 1964 when the claim is based on a mandatory job transfer. Rather, in Muldrow v. St. Louis, the Supreme Court held that a plaintiff need only show “some” degree of harm to “an identifiable term or condition of employment.” This decision ostensibly relaxes the standard an employee must meet in Title VII involuntary job transfer cases and it resolves inconsistencies among the lower federal courts that have required plaintiffs to show different levels or degrees of harm in these claims. 

Title VII protects employees and job applicants from discrimination based on race, color, religion, sex, and national origin. Title VII covers the full spectrum of employment decisions, including recruitment, hiring, discipline, termination and, as discussed in Muldrow, other “terms, conditions, or privileges of employment.” Title VII’s protection has long applied to an employer’s decision to involuntarily transfer an employee into another job or position. Previously, however, lower federal courts were mixed on the severity or magnitude of the harm the job transfer must cause the employee. Many courts previously required that the transfer result in “serious,” “significant,” or “material” harm (e.g., demotion, pay slash, material loss of advancement, etc.). 

In Muldrow, the plaintiff was a female sergeant with the St. Louis Police Department who worked in a highly specialized intelligence division. Her division investigated, among other things, public corruption, human trafficking, gang violence, and serious gun crimes. Sgt. Muldrow’s position granted her FBI credentials, use of an unmarked take-home vehicle, the authority to pursue multi-jurisdictional investigations, and gave her contact and visibility with high-ranking police and government officials. When a new commanding officer assumed command of her division, she was transferred (in favor of a male officer) to uniformed duty, where she oversaw the day-to-day activities of neighborhood patrols, including approving arrests, reviewing reports, and performing various administrative tasks. Her FBI credentials were revoked, she lost the take-home use of a department-issued vehicle, and she was reassigned from a consistent weekly schedule to rotating shifts that included work on weekends. The transfer removed her from regular contact with high-ranking officials and diminished her internal visibility within the department.

Affirming the district court, the Eighth Circuit rejected Muldrow’s Title VII sex discrimination claim because she failed to show the transfer resulted in a “materially significant disadvantage” to her employment (a standard created by the Eighth Circuit). Reversing the Court of Appeals, a unanimous Supreme Court majority wrote, “Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.”

In light of Muldrow, employees need only proffer evidence that a job transfer resulted in “some” degree of harm to “an identifiable term or condition of employment.” They need not prove “significant,” “substantial,” or “material” harm. Determining what evidence will satisfy the “some” harm standard will depend on the unique facts and circumstances of each case. 

Beyond job transfers? Many legal commentators have suggested that Muldrow’s lesser “harm” standard could be applied outside of the job transfer context, for example, to attack DEI and workplace equality initiatives. However, whether Muldrow will lead to a flood of coordinated claims seeking to challenge DEI initiatives (as some have suggested) remains to be seen, as does the viability of applying Muldrow in that context.  

For now, employers may consider reviewing their practices around job transfer decisions, including how they document the rationale for such transfers, the employee selection criteria they use, and the positive/negative impact the transfer may have on the terms and conditions of employment.