Article By: Law Clerk Jose De Luna
Title VII of the Civil Rights Act protects employees, public and private, from discrimination based on race, color, religion, sex, and national origin. In a Title VII claim, a plaintiff must show “some harm” from a term or condition of employment. For decades some appeals circuits required evidence of a “significant” harm.
For nine years Police Sergeant Jatonya Muldrow worked as a plainclothes officer in the specialized Intelligence Division of the St. Louis Police Department. When the new commander took charge however, Muldrow experienced significant change. Muldrow was transferred out of the unit and reassigned. Her rank and pay remained the same, but her responsibilities, perks, and schedule did not. She no longer worked with high-ranking officials, lost the prestige of the Intelligence Division duties, lost her FBI credentials, lost access to a vehicle, and she lost a consistent Monday-Friday schedule.
Muldrow initiated a Title VII suit to challenge the transfer. Muldrow v. City of St. Louis, Missouri, 144 S. Ct. 967 (2024). Despite the changes to Muldrow’s employment, to the District and Court of Appeals, they were not “significant.” In a swift decision, the Supreme Court resolved the circuit split, concluding that nowhere in the text of Title VII is a “significance” test required. To discriminate against means to treat worse, but the Act does not specify how much worse. The decision more accurately reflects the language of the Act in that an employee need only show “some harm.” The Supreme Court handed employees a significant win.
What does this decision mean for employers? The concern with the result is that “lateral” transfers like Muldrow’s, where pay and position remained the same, will be more difficult to make. The heightened bar of “significant” harm has been eliminated but, that does not mean that every time an employee is reassigned to a lateral position, they will have a viable lawsuit. Employers should remember that the employee must still prove that the employer acted discriminatorily because of sex or another protected trait. This continues to be a barrier to many suits.
Still, the reality of the decision is that across-the-board, plaintiffs who are discriminated against will have an easier time proving that they suffered harm. Muldrow’s pay and title remained the same, but she lost many “perks” in her lateral transfer. What if a principal is transferred to a new school with less resources or less luxurious facilities; would that now satisfy a harm? In a school district with low-income campuses, could an employee meet “some harm” after being moved to a position requiring after-school commitment to facilitate free-dinner programs? What if an administrator is moved to a campus with lower exam results, impacting their aspirations to move into higher administrative positions? Only time and new precedents will tell us what exactly satisfies “some harm” in this new era.
What then can employers do to prevent a Title VII suit? First, employers should not commit discriminatory employment practices. Generally, it does not matter if an employee suffers harm from an employment decision if it wasn’t discriminatory. Second, employers should take increased measures to ensure minimal harm results from employment decisions. Changes not related to pay or title will be more heavily scrutinized under the new precedent. Employers making lateral transfers should minimize changes to perks and other factors.
The extent of the decision is yet to be seen. What we do know is that the bar has been lowered to show harm in Title VII suits. What remains is finding out how low it will go.
