Supreme Court Loosens Adverse Action Standard for Discrimination Claims – But Avoids Dooming DEI

The Supreme Court made it easier for claimants to assert discrimination claims under Title VII in its April 17 ruling in Muldrow v. City of St. Louis, et al. Previously, courts required a plaintiff to show that a workplace decision or action had caused a "materially significant disadvantage" or a "significant detrimental effect" upon the employee's terms or conditions of employment. The Supreme Court rejected the idea of severe or significant detrimental harm and instead concluded that a plaintiff alleging discrimination must show "some injury respecting her employment terms or conditions."

Even as the decision makes it somewhat easier for a plaintiff to pursue a discrimination claim, employers and DEI advocates had feared a more wide-ranging decision that could have permitted plaintiffs to file suit over the slightest workplace events. At oral argument, the justices appeared poised to potentially eliminate the harm requirement entirely, instead requiring only that plaintiffs prove that they have been treated differently based upon a protected class. This change would have opened the floodgates for employees to bring claims based on minor issues, creating a potential wave of litigation for employers. On the DEI front, a decision eliminating the harm requirement would have provided an easy avenue for anti-DEI activists to challenge programs that seek to advance workplace equity.

Question Presented Under Title VII of the Civil Rights Act

Title VII of the Civil Rights Act of 1964 prohibits employers from taking an adverse action against an employee with respect to the employee's "terms, conditions, or privileges of employment" because of a characteristic protected under the law, such as sex, national origin, religion, or race. Over the years, a split among the federal Courts of Appeals developed on the question of whether an allegedly discriminatory adverse action against an employee must rise to a certain threshold level of severity to create a claim, with some circuit courts holding that the employee must show harm that constitutes a "materially significant disadvantage" or a "significant detrimental effect" upon the employee's terms or conditions of employment.

Sergeant Jatonya Clayborn Muldrow worked for the St. Louis Police Department as a plainclothes officer in the Special Intelligence Division. The Commander of the division transferred her to a different role, supervising neighborhood police officers, and he put a male officer in her former role. Sgt. Muldrow sued for sex discrimination under Title VII, alleging that her involuntary job transfer constituted discrimination with respect to the terms or conditions of her employment. The District Court and Court of Appeals rejected Sgt. Muldrow's discrimination claim on the ground that the involuntary job transfer did not cause her a "materially significant employment disadvantage" because it did not impact her rank or her compensation.

On appeal to the Supreme Court, Sgt. Muldrow argued that any change to a term or condition of employment that is based on a protected class should give rise to a discrimination claim under Title VII and that case law requiring "significant" or "material" harm was not in line with Title VII. The Court largely agreed, in a 9-0 opinion. Justice Kagan, writing for the majority, observed that Title VII provides no textual foundation for the proposition that the harm incurred by her transfer had to be "significant…[o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar…." It reasoned that demanding that the action be "significant" created a substantial change to the law as enacted by Congress and was therefore improper. The majority stopped short, however, of removing the requirement that the employee demonstrate harm, concluding that, although the impact need not be "significant" or "material," the plaintiff alleging discrimination must now show "some injury respecting her employment terms or conditions."

With regard to the job transfer that Muldrow had alleged, the Court found that Sgt. Muldrow easily met that standard, commenting that the transfer "chang[ed] nothing less than the what, where, and when of her police work." The Court noted that the new role was different in terms of Sgt. Muldrow's "responsibilities, perks, and schedule[.]" She no longer worked with high-ranking officials in the Intelligence Division and was instead performing more administrative functions involved in supervising the day-to-day activities of neighborhood patrol officers. Because the plaintiff no longer served in the Intelligence Division, she also lost her FBI status, which had come with a car, and her schedule went from a traditional Monday-through-Friday week to a "rotating schedule" that often involved weekend shifts.

The concurring justices (J. Alito, J. Kavanaugh, and J. Thomas) agreed with the result but disagreed with the majority on different bases. Justice Alito wrote separately to explain that he found the Court's revision to the law to be meaningless: he saw "little if any substantive difference between the terminology the Court approves and [what] it doesn't like" and predicted, "lower court judges will mind the words they use but will continue to do pretty much just what they have done for years." Justice Kavanaugh went in a different direction—he concurred in the result but questioned the Majority's harm requirement, writing, "[T]he text of Title VII does not require a separate showing of some harm. The discrimination is the harm." He then opined, in what will likely be a frequently cited passage for discrimination plaintiffs, that the majority's harm requirement is a "relatively low bar" and a plaintiff who experienced a discriminatory transfer "should easily be able to show some additional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like."

Practical Steps for Employers

Even as some suggest that this case does not represent a significant change in the law, the decision will likely make it easier for workplace discrimination claims from existing employees. For example, it will be easier to base a claim on a transfer from one position to another. Employers are wise to continue to reinforce their strategies to guard against discriminatory workplace actions. Among these strategies:

1. Always have a clear, articulable non-discriminatory reason for every workplace action, including transfers, work assignments, schedule changes, etc.

2. Train managers to focus on skills, qualifications, performance, and other non-discriminatory factors when making any workplace decision.

3. Consider requiring Human Resources review of job transfers.

4. Evaluate DEI programs and initiatives to ensure they do not inadvertently present discrimination issues under this altered standard.

5. Monitor further development of case law.

Employers should explore the implications of this case on their own workforces with experienced employment counsel. The employment lawyers at Davis Wright Tremaine will continue to alert employers to any further developments.