Adverse employment actions - the Supreme Court is being asked to examine this issue

A certiorari petition is pending in the U. S Supreme Court that may significantly change the legal standard in the Second Circuit for bringing an employment discrimination case. The question is what is an adverse employment action under Title VII and other employment discrimination cases.

The case is Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022). The plaintiff was a police officer who was transferred from the Intelligence Division (where she oversaw public corruption and human trafficking cases) to a more traditional and less prestigious position supervising other offers on patrol. The Intelligence Division was a more prestigious position. Was the transfer an adverse employment action? The Eighth Circuit said it was not an adverse action because plaintiff suffered no loss in pay or rank and the transfer did not harm her future career prospects. This probably would have been the same result in the Second Circuit, which defines an adverse employment action as follows:

To be “materially adverse” a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” “A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” 

The leading case in the Second Circuit on this issue is Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000). Galabya cites in part Crady v. Liberty Nat. Bank, 993 F.2d 132, 136 (7th Cir. 1993), which said "a materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."

In the Second Circuit, many cases are dismissed on authority of Galabya. But two Circuits have adopted a different view. In Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022), the en banc court overruled a prior decision from the D.C. Circuit that tracked the language in Galabya and noted that Title VII does not expressly state that an adverse action action requires the loss of money or some other tangible loss, such as a demotion or termination. Chambers said as follows:

The relevant part of section 703(a)(1) is capacious: By leaving undefined the phrase “terms, conditions, or privileges of employment,” the Congress “evince[ed] a[n] ... intent to strike at the entire spectrum of disparate treatment ... in employment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) Although the phrase is not without limits—not everything that happens at the workplace affects an employee's “terms, conditions, or privileges of employment”—the transfer of an employee to a new role, unit, or location (as opposed to the mere formality of a change in title that Judge Walker instances in his separate opinion) undoubtedly is included. 

“Discrimination” refers to “differential treatment.” Jackson v. Birmingham Board of Education, 544 U.S. 167, 174 (2005). The unadorned wording of the statute admits of no distinction between “economic” and “non-economic” discrimination or “tangible” and “intangible” discrimination. See Meritor, 477 U.S. at 64. Nor does the statute distinguish between “subtle” or “overt” discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). Rather, Title VII prohibits all discrimination with respect to terms and conditions of employment.

The Sixth Circuit also holds that "engrafting an adverse employment action requirement on Title VII is an atextual judicial innovation. Threat v. City of Cleveland, 6 F.4th 672 (6th Cir. 2021). But Threat and Chambers are the minority view. Most Circuits agree with the Second Circuit on this issue.

That may change. The plaintiff in Muldrow filed a certiorari petition with the Supreme Court, asking it to reject the more defendant-friendly adverse action in favor of the more plaintiff-friendly Chambers and Threat. That petition, which notes the circuit-split, will be discussed at the Supreme Court's private conference on June 22, 2023.  

Without a crystal ball or a DeLorean time machine, I cannot predict what the Supreme Court will do. It only takes four justices to grant certiorari to hear the case. There are three liberals on the Court. Is there a fourth vote? Consider this. In 2017, a judge on the D.C. Circuit wrote as follows:

Our precedents hold that discriminatory transfers (and discriminatory denials of transfers) are ordinarily not actionable under Title VII. See Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003); Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). The majority opinion narrows those precedents and holds that discriminatory transfers are sometimes actionable, including under the circumstances alleged in this case. I am comfortable with that narrowing of our precedents, and I therefore join the majority opinion.

That said, uncertainty will remain about the line separating transfers actionable under Title VII from those that are not actionable. In my view, the en banc Court at some point should go further and definitively establish the following clear principle: All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII. As I see it, transferring an employee because of the employee's race (or denying an employee's requested transfer because of the employee's race) plainly constitutes discrimination with respect to “compensation, terms, conditions, or privileges of employment” in violation of Title VII. 42 U.S.C. § 2000e-2(a). I look forward to a future case where our Court says as much.

That case as Ortiz-Diaz v. United States Dep't of Hous. & Urb. Dev., Off. of Inspector Gen., 867 F.3d 70 (D.C. Cir. 2017). The judge who wrote that was Brett Kavanaugh, who now sits on the Supreme Court.