In a unanimous decision issued on April 17, 2024, the U.S. Supreme Court held that a change in the terms and conditions of employment done for a discriminatory purpose violates Title VII of the Civil Rights Act of 1964 even if the resulting harm is not significant. This decision lowers the bar for employees to make a prima facie case for employment discrimination, which previously required material harm or significant disadvantage. Employers need to be aware that any negative change in employment terms or conditions may create Title VII liability if the change is made for a discriminatory purpose.
Jatonya Muldrow was a sergeant with the St. Louis Police Department’s intelligence division, when she was involuntarily transferred to the department’s patrol division so her supervisor could hire a man in her place. In the intelligence division, Muldrow worked as a plain-clothes officer investigating high-profile cases, at times ran two different specialized units, and was deputized as an FBI task force officer. As an FBI task force officer, Muldrow enjoyed access to an unmarked take-home vehicle, FBI credentials, and expanded jurisdictional authority. When Muldrow was transferred she kept her rank and pay, but was required to wear a police uniform, supervised the day-to-day activities of line-level patrol officers, performed patrol duties, and lost her FBI status, along with the credentials, car, and expanded authority it carried. In addition, the change took Muldrow from a standard Monday to Friday work week to a rotating schedule which required weekend shifts. Muldrow challenged her transfer under 42 U.S.C. § 2000e-2(a)(1), alleging that she had been moved out of a “premier position” to a less “prestigious” and more “administrative” role. Muldrow lost at the District Court level and the Eighth Circuit Court of Appeals before appealing to the U.S. Supreme Court, because she maintained her title, salary, and benefits, with only minor changes in her working conditions.
Title VII makes it unlawful to make hiring or discharge decisions, or otherwise discriminate against any individual with respect to “compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Court in Muldrow explained that to show discrimination with respect to the terms or conditions of employment, an employee must show a disadvantageous or injurious change to an identifiable term or condition of employment. But the Court found that the statutory text does not require that the harm respecting an identifiable term or condition of employment be significant, serious, or substantial, or otherwise require a certain threshold of harm.
The Court, in its decision, addressed a concern of the City, and likely many employers, that lowering the bar for adverse employment action will result in a flood of lawsuits and claims which previously could have been weeded out at an early stage. The Court dismissed these concerns, stating that the employee still must show an injury concerning the terms or conditions of employment, and that the employer acted for discriminatory reasons. The Court further stated that a less harmful act may, in a given context, be “less suggestive of intentional discrimination.” Still, those showings must be made at a later stage in a given case, and the reduced threshold for a prima facie case of Title VII discrimination will make cases harder to dismiss or resolve on summary judgment, leading to lengthier and more expensive litigation for employers.
In response to Muldrow employers should remain vigilant when watching out for potential employment discrimination, particularly in the context of transfers. Employers need to look at the entire job, not just things like title, pay, and benefits, before concluding that a job transfer or other change does not rise to the level of adverse employment action. What constitutes a harmful change may be difficult to determine, as it will often be subjective. For example, some people may enjoy working the night shift, while others do not. Ultimately, an employee will need to convince a judge or a jury that the change was harmful, but there are plenty of examples of changes which could go either way. Employers should take extra care to carefully review and document the reasons for any non-voluntary change in the terms and conditions of employment, as if they were terminating an employee, to afford themselves the greatest protection against potential lawsuits under the Muldrow standard.
