Some Damage Is All It Takes – Supreme Court Lowers Bar for Title VII Discrimination Claims Involving Lateral Job Transfers. | Mintz – Employment Viewpoints

In Muldrow v. City of St. Louis, Mo., the U.S. Supreme Court has made it easier for employees who are involuntarily transferred to a lateral position to bring discrimination claims, even if they retain the same pay, benefits, and supervisory status.

Title VII, among other things, prohibits employees from discriminating against an employee with respect to the employee’s “conditions of employment” because of the employee’s race, color, religion, sex, or national origin. Many appellate courts had previously required employees to show that the transfer resulted in a “materially significant harm” or had a “significant adverse effect” or some other material or serious level of harm. The Supreme Court rejected this approach, noting that Title VII only requires an employee to demonstrate that he has suffered “any damage relating to an identifiable employment condition.” The phrase to “discriminate” in Title VII, the Court wrote, only means “treat worse,” and Title VII did not say “anything about how much worse,” and there is nothing to indicate that an employee must meet “an increased harm threshold.” to make that impression. In drawing its conclusion, the Court wanted to note that employees are often worse off in the event of a “forced transfer” when it comes to respecting employment conditions. . . . (a) After all, a transfer is generally not enforced if the employee is better off as a result.”

In this case, the Court stated that although the plaintiff’s salary and rank remained the same, she passed the “some harm” test “with room to spare” as she was transferred from a specialized intelligence division to a new division that If she had to work on weekends, she lost access to an unmarked vehicle and would be more involved in administrative matters and less involved in matters that were highly visible.

To be clear, the Court did not conclude that all lateral transfers would be harmful under Title VII. It will be left to employers to address transmission-based complaints that are unlikely to cause sufficient harm or injury. However, the Court declined to clarify what constitutes “any harm,” leaving the door open for future litigation on the issue as lower courts will continue to grapple with where to draw the line. But Justice Roberts noted in his concurring opinion that he expected the bar to be set low.

What employers should do now:

• Provide involuntary lateral transfers with the same consideration and scrutiny that one would give to more traditional adverse employment actions, such as a demotion or pay cut, and otherwise analyze them to see if and how the transfer may disadvantage the employee overall;
• Update training materials to account for proper evaluation of lateral transfers and/or work assignments; And
• And as we wrote in our previous post here, employers should be aware of the potential implications this decision could have for corporate DEI initiatives. As we wrote:

In a statement, EEOC Commissioner Andrea Lucas recently highlighted a number of DEI initiatives Muldrow could imply – “of providing race-limited access to mentoring, sponsorship or training programs; selecting interviewees, in part due to varying candidate policies; to link executive or employee compensation to the company’s achievement of certain demographic goals; to offering race-based diversity internship programs or accelerated job interviews, sometimes combined with euphemistic diversity fellowships that effectively provide more compensation for “diverse” summer interns.”

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