Supreme Court to decide whether lateral job transfers can be discriminatory under Title VII
In the upcoming months, the U.S. Supreme Court will decide whether lateral job transfers, with no change in pay or benefits, violate federal civil rights law if done for discriminatory reasons.
Circuit split headed for resolution
Currently, the lower circuit courts are split regarding which discriminatory employment practices are prohibited by Title VII of the Civil Rights Act of 1964.
Some circuits follow the “adverse employment action” rule or similar doctrine, which requires an employee to prove some additional harm over and above the discriminatory transfer—generally economic harm—to sustain a Title VII discrimination claim.
Other circuits have held discriminatory transfers—even when they aren’t accompanied by reductions in pay, benefits, or other “materially significant disadvantages”—are actionable under Title VII. The U.S. 4th Circuit Court of Appeals has found discriminatory practices are unlawful under Title VII when the employee can show the employer’s conduct “had some significant detrimental effect” on the employee.
Now, in Muldrow v. City of St. Louis, Missouri, the question of whether a lateral job transfer can be actionable under Title VII—even if the employee fails to show the move caused additional injury—is squarely before the Supreme Court. It heard oral arguments on December 6, 2023, and its upcoming decision could very well affect employers across the country.
Facts
Jatonya Muldrow served as a patrol detective for the St. Louis Police Department before being promoted to the intelligence division in 2008, where she worked high-profile public corruption cases and oversaw the department’s gang unit. She was deputized to work as an officer for the local FBI unit in 2016, and this position carried perks, including the opportunity to work in plain clothes, a strict Monday-to-Friday schedule, and access to an unmarked FBI vehicle. She also had the opportunity to earn up to $17,500 in overtime pay.
In 2017, a new captain took over as commander of intelligence and made several personnel changes, including transferring 22 officers (17 of whom were male) into various other positions. Of those transfers, four officers (two male and two female) were removed from the intelligence division and placed elsewhere, including Muldrow.
In her new position, Muldrow was responsible for the administrative upkeep and supervision of officers on patrol and responding to calls for service for serious crimes such as homicides. As a result of her transfer, she was required to work a rotating schedule including weekends, wear a police uniform, and drive a marked police vehicle. Her salary remained the same. She was no longer eligible for the FBI’s annual overtime pay, but she had other overtime opportunities available to her. She immediately began applying for other roles after her transfer and was accepted back into the intelligence division after about eight months.
Muldrow filed a Title VII sex discrimination suit alleging her transfer from the intelligence division was motivated by new leadership wanting a male in her previous role. According to her, the transfer constituted an adverse employment action that could sustain a Title VII claim because her new work was more administrative and less prestigious than that of the intelligence division and more akin to basic entry-level work.
The district court and the U.S. 8th Circuit Court of Appeals ruled in favor of the police department and found Title VII bars only adverse employment actions that result in materially significant disadvantages for the employee. The courts reasoned Muldrow’s transfer didn’t result in any materially significant disadvantages because her pay and rank remained the same, she was given a supervisory role and was responsible for investigating important crimes, and her transfer didn’t harm her future career prospects, evidenced by her return to the intelligence division.
Supreme Court decision pending
The Supreme Court heard oral arguments on the case in December 2023. It’s difficult to predict what the Court will decide. The fact that it chose to examine Muldrow’s case could suggest it will issue an employee-friendly ruling. On the other hand, it’s possible the Court chose to accept the case to settle a circuit split with an employer-friendly ruling.
In any event, the Court’s decision could provide clarity for employers across the country regarding what level of harm an employment decision must cause an employee for the decision to be an “adverse employment action” under Title VII.
Takeaways
The implications of the Supreme Court’s decision will determine the scope of the actions for which employees can make claims with the Equal Employment Opportunity Commission (EEOC) or in court.
Because of this, you may need to revisit your current HR practices if Muldrow prevails. Specifically, a ruling in favor of Muldrow could mean you need to expand discrimination training to emphasize the nuances of lateral transfers and other actions that might support claims. Finally, if the definition of what constitutes an “adverse employment action” is broadened, you could see an uptick in the number of discrimination claims.
