March 14, 2024

Everybody Hurts: Rethinking the Material Harm Requirement in Employment Discrimination Claims

4 min

The Supreme Court recently heard the case of Muldrow v. City of St. Louis, a decision that could expand the scope of Title VII’s discrimination protections. With this case, the Court could expose all of an organization’s personnel decisions to legal scrutiny, not just those that pose a “materially significant disadvantage” to an employee.

Facts of the Case

Sergeant Jatonya Muldrow, a longtime St. Louis police officer who handled high-profile criminal investigations, alleged that she was discriminated against based on sex when she was transferred to an arguably less prestigious position.

Muldrow was hired in 2008 as a patrol detective in the Intelligence Division of the St. Louis Police Department. She worked on public corruption, gun, gang, and human trafficking crimes. In this role she was deputized by the FBI and obtained special privileges, like the use of an unmarked vehicle, the ability to wear plain clothes, and entry to FBI field offices.

Muldrow’s job changed in 2017 when a new commander was brought in to lead the police department. He immediately reassigned 17 male officers and 5 female officers across the department, including Muldrow. She was replaced by a man and transferred to a new position that included supervision of patrol officers, administrative work, a new schedule, and a mandated uniform. As a result of the transfer, she lost her special privileges with the FBI. However, her base salary and rank remained the same after her transfer.

As a result of this transfer, Muldrow claimed that the department violated the plain text of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex (among other things).

Does Title VII Protect against This Purported Harm?

Muldrow challenges the current judicial standard regarding what constitutes an actionable “adverse employment action.” Currently, in order to prevail in a discrimination case, employees must show that they suffered some harm or disadvantage that is tangible, impactful, and nontrivial. Typical adverse employment actions include termination, a reduction in pay, or a demotion. Under current standards, a lateral transfer with no change in pay or benefits is generally not an adverse employment action and cannot be challenged in court.

Here, Muldrow argued that her transfer should be actionable because Congress intended for Title VII to be so expansive as to free the workplace from discrimination, subtle or otherwise. She argues that Title VII does not require any particular harm; she feels it should be enough to show that she suffered different treatment because of her sex. The City of St. Louis argues that Muldrow’s transfer was not a demotion, and that expanding the scope of Title VII in the way Muldrow requests is unworkable because it would open courts up to reviewing even minor personnel decisions.

Potential for Broader Claims

If the Court accepts Muldrow’s invitation to expand the scope of Title VII, employers could see virtually all of their personnel decisions subject to the heightened scrutiny of Title VII, even decisions that might be considered trivial by many people. Employers may need to scrutinize minor decisions such as short-term work assignments, office/cubicle placement, and other minor changes to or differences in working conditions.

Furthermore, this case comes in the context of other Supreme Court decisions that have challenged or limited employers’ abilities to pursue diversity, equity, and inclusion programs. If the Supreme Court were to relax the type of employment action that could serve as the basis of a discrimination lawsuit, it opens the doors to an increase in “reverse” discrimination cases (cases where someone in a majority class protests a program meant to benefit minority class members). Such cases could make recruitment, training, and mentorship programs targeted toward underrepresented groups much more vulnerable to legal challenge and riskier for an employer to maintain.

Takeaways for employers

Muldrow could be a broad or a narrow decision: if the Court decides in Muldrow’s favor and uses broad language, the case could have far-reaching consequences for employers across the country. Alternatively, the Court may make a narrower finding that only workplace transfers would be subject to its ruling. The Court may also choose to uphold the practice and permit claims in court only for significant employment decisions that cause some kind of harm.

As always, employers should stay informed regarding potential changes to Title VII’s requirements. Employers should be on the lookout for a decision in the Muldrow case, which is expected later this year. 

Employers with questions about how this decision might affect their personnel decisions are invited to contact the authors of this article or any other attorney in Venable's Labor and Employment Group.

*Special thanks to Keith Olsen for their assistance with this article.