Supreme Court makes it easier for Title VII plaintiffs to win discriminatory transfer cases

In a major ruling under Title VII (the primary federal employment discrimination statute), the Supreme Court holds that plaintiffs challenging a discriminatory job transfer need only prove the transfer brought about some "disadvantageous" change in an employment term and condition. This ruling rejects the test applied in the Second Circuit and elsewhere, which required that the plaintiff prove a "significant" change in the terms and conditions of employment. Instead, the plaintiff need only prove "some harm respecting an identifiable term or condition of employment."

The case is Muldrow v. City of St. Louis, issued on April 17. For decades, at least in the Second Circuit (and most of the other Circuits), courts have required Title VII plaintiffs to prove a "material" change in the terms and conditions of employment in order to win the case. A termination or demotion is certainly material, but transfers were less clear. A few Circuits in recent years took a fresh look at the materiality test and determined that it finds no basis under Title VII's plain language, and they instead held that any discrimination is actionable under Title. VII. The Supreme Court does not go that far, but it does reduce the plaintiff's burden in proving a discriminatory transfer case.

Plaintiff was a female law enforcement professional who was transferred to a less-prestigious unit, where her rank and pay remained the same but she no longer worked with high-ranking officials on departmental priorities in the Intelligence Division and instead supervised day-to-day activities of neighborhood patrol officers. The transfer also cost her an unmarked take-home vehicle, and she had to work some weekends. The evidence suggests a supervisor wanted a man to hold plaintiff's position, which occasioned the transfer. Is this an adverse action under Title VII?

This case is the first time the Supreme Court really explains what constitutes an adverse action under Title VII, enacted in 1964. Circuit courts have had to define that phrase and over the years the consensus was that a "material" change in the terms and conditions of employment is necessary to win the case. This led to the dismissal of countless cases where courts thought the plaintiff could not prove an adverse action, and many of these dismissals were transfer cases. The Second Circuit held firm on the materiality standard, as the Supreme Court notes in listing the cases creating the Circuit split that led the Court to grant certiorari.

Writing for a unanimous Court, Justice Kagan writes that the "materiality" or "significant" test in transfer cases finds no support in the language of Title VII. In other words, that high burden was judge-made and not authorized by Congress. The high burden has led to conflicting results in the various Courts of Appeals over the years, Justice Kagan notes. After summarizing cases in which the plaintiff lost under the heightened standard, she writes: "All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require."

Muldrow's case, which was dismissed under the now-rejected materiality standard, is revived. If she can prove her allegations, then she has an adverse action, the Court holds. 

Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily per- formed administrative work. Her schedule became less reg- ular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought . . . that her rank and pay remained the same, or that she still could advance to other jobs. Title VII prohibits making a transfer, based on sex, with the consequences Muldrow described.

The case returns to the district court to apply the correct standard. 

We have a few concurrences, including one from Justice Alito, who says the ruling is "unhelpful" and that he has "no idea what [the new standard] means, and I can just imagine how this guidance will be greeted by lower court judges." He adds:

I see little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like. The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much what they have done for years.

Justice Kavanaugh would take the standard even further and allow plaintiffs to win if they can prove any transfer was discriminatory. He writes:

No court has adopted a some-harm requirement. No  court  has  adopted  a  some-harm requirement, and no party or amicus advocated that requirement to this Court. More to the point, the text of Title VII does not require a separate showing of some harm. The discrimination is harm. The only question then is whether the relevant employment action changes the compensation,  terms, conditions, or  privileges  of employment. A transfer does so. Therefore, as the D. C. Circuit explained, a transfer on the basis of race, color, religion, or national origin is actionable under Title VII.

Justice Kavanaugh recognizes that Justice Kagan's new test presents "a relatively low bar" for plaintiffs and that, in his view, "anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some  additional  harm—whether  in  money,  time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional   relationships, networking opportunities, effects on family obligations, or the like."

How will this holding affect other Title VII cases that do not involve discriminatory transfers but job-actions that do not result in terminations or demotions? The Court does not say. The next few years will yield new cases in the lower courts that grapple with the new test in different factual settings.