Does a plaintiff employee have to show that their terms or conditions of employment suffered as a result of a discriminatory transfer to prevail on a discrimination claim? On December 6, the U.S. Supreme Court answer this question when it hears oral argument in the case of Muldrow v. City of St. Louis, Missouri.
There currently exists a disagreement among federal appellate courts about whether “an employee’s reassignment, absent proof of harm resulting from that reassignment” is sufficient to constitute an “adverse employment action” that can serve as the basis for a discrimination claim. Some Circuits have held that Title VII does not require a showing of harm beyond the discriminatory conduct at issue, while other Circuits have held that such a showing is required to have a viable claim.
In Muldrow, a female sergeant with the St. Louis Police Department claimed that she involuntarily and discriminatorily transferred to a different position because her supervisor preferred to hire a man for her job. The U.S. Court of Appeals for the 8th Circuit held that Muldrow could not prevail on her claim of discrimination because she had not shown that her transfer, even if made for discriminatory reasons, had resulted in a significant employment disadvantage for her. The Biden administration rejected the 8th Circuit’s ruling, with the US Solicitor General stating that it had “no foundation in Title VII’s text, structure, or purpose.”
The Supreme Court’s decision in this case could have a major impact for employers. If the Court rules that no showing of harm is required to assert a viable discrimination claim, this will significantly expand the scope of personnel decisions plaintiffs can use as the basis for an employment discrimination claim.
While employers wait for the Court’s ruling in this case — expected sometime in 2024 — they should take steps to ensure that all personnel decisions are made for non-discriminatory reasons, consulting with counsel when sensitive issues or complex situations arise.