In Muldrow v. City of St. Louis, the Supreme Court tackled a very important question: under Title VII (the federal civil rights law), when is a job transfer discrimination?
The Background
Title VII makes it unlawful for an employer “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.” 42 U.S.C.S. § 2000e-2(a)(1) (emphasis added).
Under Title VII, certain job transfers fall within the “otherwise to discriminate” catch-all. But not all job transfers are illegal. Most circuit courts have read in the requirement that a job transfer be “significant.” This standard yielded some surprising results:
- An engineering technician is transferred to a new job site— a 14-by-22-foot wind tunnel. The court rules the transfer does not have a “significant detrimental effect.” Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999).
- A shipping worker is transferred to a night shift position; a court decides the assignment does not “constitute a significant change in employment.” Daniels v. UPS, 701 F.3d 620 (10th Cir. 2012).
- A school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties was not “significant.” Cole v. Wake County Board of Education, 834 F. App’x 820 (4th Cir. 2021).
The Ruling
In Muldrow, Muldrow alleged she was transferred to a lesser position because she is a woman. Both parties agree that the transfer implicated “terms” and “conditions” of Muldrow’s employment, changing the what, where, and when of her police work. The lower courts ruled the job transfer was not discrimination because the changes were not “significant.”
The Supreme Court rejected the lower court’s analysis—asserting that “significant” is not statutorily derived and, therefore, is an improper inquiry. Moreover, “neither [the Statute] nor any other [law] say anything about how much worse [the transfer must be]. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones.”
What did the Supreme Court offer in the place of “significant?” The Court explained, “[t]o make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.” With the stroke of a keyboard, the past 60 years of common law was vacated, and Muldrow’s case remanded.
What This Means
Underlying this case is the concept that illegal discrimination must involve not only discrimination, but discrimination that causes harm. Lower courts will now duke it out over what is “some harm.” However, the result is clear: it is no longer safe to assume job transfers rarely cause any “harm.” If you are considering transferring an employee who may claim discrimination, you should evaluate the “harm” caused by the transfer.
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
