Employers, Take Note: Transferring an Employee to Another Position with the Same Rank and Pay May Now Get You Sued Under Title VII

The range of employment decisions subject to Title VII scrutiny continues to grow.  As discussed in previous posts, the Fifth Circuit recently overturned its prior precedent limiting Title VII discrimination claims to “ultimate employment decisions,” finding that Title VII’s protections extend to any adverse employment action that materially impacts the “terms, conditions, and privileges” of employment.  Now, the United States Supreme Court has lowered the bar even further for Title VII plaintiffs complaining about discriminatory job transfers.

In Muldrow v. City of St. Louis, the St. Louis Police Department transferred a female police officer from a plainclothes position to a uniformed position, and then replaced her with a male police officer based on the assumption that he would be a better fit for the “very dangerous” work required by the plainclothes position.  Although Muldrow’s rank and pay remained the same, her responsibilities, perks, and schedule did not (e.g., she no longer worked with high-ranking officials, and instead had to supervise day-to-day activities of neighborhood patrol officers; she lost access to an unmarked take-home vehicle; and she had a less regular schedule involving weekend shifts).

When Muldrow sued for sex discrimination, the court ruled in favor of the City because Muldrow could not show that the transfer caused her a “materially significant disadvantage” because it “did not result in a diminution to her title, salary, or benefits” and had only caused “minor changes in working conditions.”

The Supreme Court reversed, holding that “an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.”

As it often does, the Supreme Court based its decision on Title VII’s plain language, which prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s protected characteristic.  According to the Court, “[t]hat language requires Muldrow to show that the transfer brought about some ‘disadvantageous’ change in an employment term or condition.”  And, building on its prior decision that “harm” in this context covers more than the “economic or tangible,” the Court reasoned that any alleged harm does not have to be “significant” or “serious” or “substantial” or “any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar” because such a requirement would mean that “the law as applied demands something more [] than the law as written.”

Employers should keep this decision in mind when evaluating employee transfers going forward––including transfers that do not result in any change to an employee’s rank or salary.  Under this new standard, reassigning an employee to another position within their same professional capacity could result in “some harm” to the terms and conditions of employment, such as a less desirable schedule or less prestigious job duties.  That said, Title VII ultimately requires proof of discriminatory intent, and therefore does not prohibit non-discriminatory transfers, regardless of their impact on the terms and conditions of employment.

If you have any questions about the Muldrow decision or Title VII’s liability standard, please  contact Stephanie Hamm at shamm@thompsonhorton.com, Adam Rothey at arothey@thompsonhorton.com, Alexa Gould at agould@thompsonhorton.com, or any member of Thompson & Horton’s employment litigation team.