Employers May Face More Title VII Discrimination Claims after SCOTUS Decision

By J. Beverly and Mark Zeidman, Attorneys/Shareholders

The U.S. Supreme Court has loosened the requirements for employees bringing actions alleging discrimination with respect to changes in the terms and conditions of their employment.  In short, under Title VII, employers can’t discriminate based on race, color, religion, sex or national origin.  The question in this case was what degree of harm an employee must show to prevail on a Title VII claim.

In Muldrow v. City of St. Louis, the Court held that an employee no longer has to prove that an adverse employment action was “significant” to prevail on a discrimination claim under Title VII.  Although some Circuit Courts of Appeals had rejected this heightened-injury standard, the Supreme Court’s ruling here does stand in contrast to decades of other Circuit Court decisions requiring that discriminatory actions be significant, serious or substantial.  After the Muldrow decision, an employee must only show some harm.

Title VII’s Prohibition on Discrimination

Title VII prohibits employers with 15 or more employees “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” on the basis of race, color, religion, sex (which the Supreme Court has held includes sexual orientation and gender identity) or national origin.

To sue under Title VII, an employee must establish that they suffered an “adverse employment action.” The Supreme Court has been clear that “terms and conditions of employment . . . covers more than the economic or tangible.” An employee must only show “some harm respecting an identifiable term or condition of employment.” But many courts have routinely rejected claims alleging adverse actions by employer because the action did not result in significant harm to the employee. The standards have been variously framed as requiring a “significant detrimental effect” on the employee, a “significant change in employment” or the like.

Why This Case is Important

Sergeant Muldrow is a female who worked as plainclothes police officer in St. Louis, Missouri with a distinguished career in the Intelligence Division. She had investigated public corruption and human trafficking and served as head of the Gun Crimes Unit. She was also deputized as a Task Force Officer by the FBI which afforded her FBI credentials, an unmarked take-home vehicle and authority to pursue investigations outside of St. Louis.

A new Division commander, however, decided to replace her with a male officer that he viewed as a better fit for the Division’s “very dangerous work.”  Muldrow’s rank and pay remained the same, but her responsibilities, perks and schedule were changed – resulting in less interaction with high-ranking officials, loss of her take-home vehicle, and a much less regular schedule involving weekend shifts.

Muldrow sued, alleging she had been moved out of a “premier position” to a “less prestigious” and more “administrative uniformed role” based on her sex in violation of Title VII.

The district court found that Muldrow had not established that the transfer caused a “significant” change in her working conditions producing a “material employment disadvantage.” She was still a supervisor with the same pay and the other factors such as the change in her schedule and loss of the take-home vehicle were not enough to meet this heightened-injury standard.

The Eighth Circuit affirmed, holding that the transfer “did not result in a diminution to her title, salary, or benefits,” and that her claim of a less prestigious position was not persuasive and the other factors were “too slight to mention.” Overall, the court concluded Muldrow could not prevail because she had experience only “minor changes in working conditions.”

Textualism Prevails – The Supreme Court Rules for Muldrow

The Supreme Court granted certiorari to resolve the Circuit split over the threshold of harm required for an employee to prevail under Title VII. In an opinion by Justice Kagan, the Court looked to the plain text of the statute and flatly rejected the lower courts’ imposition of the heightened standard of harm. The Court held that with regard to actions other than refusal to hire or discharge, Title VII only requires that a plaintiff show some “’disadvantageous’ change in an employment term or condition” and that change need not be significant. To require otherwise would be to “add words – and significant words, as it were – to the statute Congress enacted.”

Under Title VII, employers cannot “discriminate against” an employee. The Court held that phrase simply means to treat worse, and the statute does not say “anything about “how much worse.” The Court acknowledged that its decision “lowers the bar” for any plaintiff in Circuits that “previously required ‘significant,’ ‘material,’ or ‘serious’ injury.”  An employee plaintiff must still show some harm respecting an identifiable term or condition of employment, but no longer has to show that the harm was “significant.”

The Court dismissed any concerns about its ruling “swamping courts and employers with insubstantial lawsuits.”  The Court noted that plaintiffs still have considerable hurdles to clear and lower courts have multiple ways to dispose of meritless Title VII claims challenging transfer decision.  With respect to any policy arguments, Justice Kagan emphasized that Congress could have, but did not, impose a heightened standard on employees, and that the Court “did not get to make that judgment.”  Textualism prevailed and employees will likely benefit.

The Effect on Employers?

The Muldrow decision reflects a “significant” change lowering the threshold for employees claiming discrimination under the “terms and conditions” provision of Title VII because an employee must now only show some harm resulting from the employer’s action..  Employers will very likely be faced with the prospect of additional claims under this more employee-friendly standard. Not only job transfers, but other employment actions such as denial of training opportunities and other perks, changes in scheduling and location, and other policies may now support a discrimination claim where an employee can show some harm.  Employers should regularly evaluate and update their policies to ensure that they are not discriminatory and carefully consider any changes to an employee’s terms, conditions or privileges of employment, even if such policies and changes do not appear to result in “significant” harm to an employee.

FBFK’s employment law sections stands ready to assist employers in evaluating and updating their employment policies, providing consultation with respect to proposed employment actions and defending employers in the event of a Title VII lawsuit.