On Dec. 6, 2023, the Supreme Court of the United States (SCOTUS) heard oral arguments in Muldrow v. St. Louis to determine whether an employee can establish the “adverse employment action” prong of a prima facie case of discrimination under Title VII of the Civil Rights Act, absent a court determination that the employer’s transfer decisions resulted in material harm or significant disadvantage to the employee. The decision, expected in early 2024, has the potential to broaden the scope of actionable claims under Title VII, and impact employers’ flexibility in making certain employment decisions.
For context, Jatonya Clayborn Muldrow, a sergeant with the St. Louis Police Department, was transferred from the Intelligence Division to its Fifth District division. Although her title and pay did not change, Muldrow claims that the transfer was “less prestigious” and impacted her overtime opportunities, required work attire and daily schedule. A male employee was hired to take her former role with the Intelligence Division. Muldrow subsequently sued her employer, alleging that the transfer was based on sex and violated Title VII. However, the federal district court found that Muldrow failed to prove that her transfer caused “a tangible change in working conditions that produced a material employment disadvantage” and granted summary judgment to the employer on that discrimination claim. The Eighth Circuit Court of Appeals affirmed.
In Title VII discrimination cases, to establish a prima facie case, plaintiffs have to show, among other things, that they are a member of a protected class and suffered an “adverse employment action.” Across numerous cases, over 30 years, the courts of appeal from multiple circuits have defined “adverse employment action” to require something more than trivial alterations to working conditions. For example, in Clegg v. Ark. Dep’t of Corr., the Eighth Circuit Court of Appeals ruled that “an adverse employment action is a tangible change in working conditions that produces a material employment disadvantage.” Similarly, in Gu v. Boston Police Dep’t., the First Circuit Court of Appeals ruled that “[t]o be adverse, an action must materially change the conditions of plaintiffs’ employ.”
During oral arguments, Muldrow’s counsel argued that regardless of a “material” or “tangible” disadvantage, any decision based on an employee’s protected characteristic is harmful and discriminatory. In opposition, the respondent, the City of St. Louis, argued that the circuit courts have repeatedly required some sort of material, objective or tangible harm to establish an “adverse employment action” under Title VII. Counsel for St. Louis emphasized that changing the status quo would open the gates for frivolous claims based on trivial changes to the workplace, essentially eviscerating employer agency over the simplest workplace decisions.
The questions posed by the justices suggest that the court may opine in favor of the plaintiff. For example, Chief Justice John Roberts asked whether there are workplace adjustments that should trigger Title VII protections if based on a protected class, even if there are no changes in terms and conditions of employment. Justices Neil Gorsuch and Brett Kavanaugh’s questions noted that disparate treatment based on race or sex is inherently discriminatory. Justice Amy Coney Barrett asked whether an employment decision based on a protected class with a positive impact on a particular group would be discrimination. Justice Clarence Thomas suggested that rendering transfer decisions based on race as inherently discriminatory would run “headlong into the focus on diversifying the workforce.” These aspects of the discussion suggest that the court’s decision may impact workplace diversity, equity and inclusion efforts in the future.
Notably, the court limited its inquiry in this case specifically to transfer decisions. Therefore, a narrow ruling is to be expected. Even so, a decision eliminating the material harm or significant disadvantage requirement would mark a major departure from the decades-old definition of “adverse employment action” applied across multiple circuits and would significantly lower the threshold for plaintiffs, potentially increasing the number of frivolous claims for employers to defend against. Transfer decisions long thought to be trivial, such as moving an employee to a different-colored office or laterally transferring them to a different department, may no longer be so simple. The court’s ruling in Muldrow could significantly increase an employer’s liability under Title VII and impact management’s flexibility in transfer decisions.
Stuthi Balaji serves as assistant general counsel for the MBTA/MassDOT, where she represents the organization in labor and employment litigation and arbitration matters, provides training and counsel to managers and key stakeholders across the commonwealth, identifies liabilities across the organization, and develops guidelines/policies to mitigate those liabilities. Prior to her current role, Balaji honed her labor relations talents as a labor and employment attorney for the Massachusetts Trial Court, and gained substantial litigation experience as an associate attorney for a boutique labor and employment firm in New York City. Her comprehensive experience in both the public and private sectors underscores her varied expertise in labor and employment law. Committed to professional development and community engagement, Balaji is an active member of the Massachusetts Bar Association’s Labor & Employment Section and has previously served in leadership roles for the New York City Bar Association.