Recent Ruling Just Made It Easier For Employees To Prove Discrimination In Violation Of Title VII Due To Transfer
Or Other Change In Terms Or Conditions Of Employment
by David R. Bohm
Jaytona Muldrow was a plainclothes sergeant in the St. Louis City Police Department’s specialized Intelligence Division. In that capacity, Muldrow was deputized as a Task Force Officer with the FBI, had FBI credentials and had an unmarked take-home car. A new captain assigned to supervise the Intelligence Division had the Police Department transfer Muldrow to a uniformed position in the City’s 5th District, supervising day-to-day activities of patrol officers. While Muldrow’s rank and pay remained the same, her responsibilities, perks, and schedule did not. She no longer worked with high-ranking officials in the police department, lost her FBI credentials and the take-home car, and had to work weekends (which she did not in the Intelligence Division).
Muldrow filed suit against the City under Title VII of the federal Civil Rights Act in the federal District Court for the Eastern District of Missouri, claiming she was transferred because she was a woman. The District Court granted summary judgment in favor of the City, holding that Muldrow’s transfer did not cause her a materially significant disadvantage, as it did not result in a diminution of her title, salary, or benefits and had caused only a minor change in her working conditions. The Eighth Circuit Court of Appeals affirmed the decision of the District Court.
In Muldrow v. City of St. Louis, issued April 16, 2024, the U.S. Supreme Court reversed, holding it was not necessary to show that an injury resulting from an action taken by an employer because of an employee’s protected status (e.g., sex, race, religion, or national origin) resulted in significant injury. Instead, Justice Kagan, writing for a six-member majority of the Court, stated “an employee must (only) show some harm from a forced transfer to prevail in a Title VII suit…” (emphasis added). This same standard of “some harm” will also apply to any other change in the terms and conditions of employment made as a result of an employee’s protected status. The other three justices each wrote opinions concurring in the result.
In the past, employers were not generally held to be liable under Title VII for transferring an employee where the transfer did not affect the employee’s job title, salary, or benefits. Several possible examples include: an employee transferred to the evening or “graveyard” shift or from weekdays to weekends is likely to claim harm because such transfer makes it more difficult to care for and interact with their family; or an employee transferred from one city to another without their consent.
An employee filing a claim of discrimination will still have to present evidence to support the claim they were transferred (or other terms or conditions of employment were changed) due to their protected status.
In the future, before transferring an employee belonging to a protected class between locations or shifts best practices will require the employer document non-discriminatory reasons for making the transfer of which the employer should make a written record. If possible, the employer should obtain the employee’s agreement to accept the transfer in writing. Following these suggestions will reduce the likelihood an employer will be sued for discrimination due to transferring an employee.
David R. Bohm litigation attorney with Danna McKitrick, P.C (www.dannamckitrick.com), works with health care, government, and business clientele. He handles matters involving employment, trademark, copyright, trade secret, cybersecurity and data protection, and complex contracts. He represents clients before various administrative agencies and is skilled in mediation and arbitration techniques as an alternative to litigation. David can be reached at 314.889.7135, dbohm@dmfirm.com, or by visiting www.dannamckitrick.com.