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Can a Job Transfer be a Discriminatory Action? Supreme Court Considers new Title VII Case

In employment discrimination cases, employees must prove that they suffered an “adverse employment action.” For years, the court’s did not consider an employer’s transfer of an employee—to another position, to another shift—an “adverse employment action.” However, the Supreme Court of the United States is considering changing this long-standing standard of interpretation and could expand the scope of discrimination cases.

On December 6, 2023, the Supreme Court heard oral arguments in Muldrow v. City of St. Louis. The plaintiff was a sergeant with the St. Louis Police Department who worked in the intelligence division, investigating public corruption and human trafficking cases. The plaintiff’s position with the intelligence division gave her the ability to earn up to $17,500 in overtime pay because she worked on an FBI task force. The position afforded the plaintiff various other benefits, such as generally working a nine-to-five schedule and the ability to wear plain clothes. Eventually, the plaintiff was involuntarily transferred to the city’s Fifth District, where she supervised police officers on patrol, reviewed and approved arrests, and worked crimes such as homicides, robberies, and assaults.  In this latter position, the plaintiff was ineligible for overtime and was forced to wear a uniform.

After the city denied her request to transfer from the Fifth District, the plaintiff sued the city alleging gender discrimination and retaliation. She alleged that the city discriminated against her by involuntarily transferring her from her position in the intelligence division, claiming that her supervisor wanted a man in the position.

Both the federal district court and the U.S. Circuit Court of Appeals for the 8th Circuit ruled in favor of the city and dismissed her suit. Both courts reasoned that the plaintiff failed to prove that her transfer amounted to an “adverse employment action” that caused material harm.

Title VII of the Civil Rights Act of 1996 prohibits discrimination on the basis of sex. To prevail under Title VII, plaintiffs alleging discrimination must establish they suffered an adverse employment action. Traditional examples of an adverse employment action include being fired, suspended, demoted, or receiving less pay or benefits. In addition, many federal circuits require plaintiffs to establish that the alleged discriminatory conduct subjected them to a “significant disadvantage” in order to prevail.

In Muldrow, the court of appeals found that the plaintiff failed to establish a significant injury or harm. “To be materially adverse, retaliation cannot be trivial. It must produce some injury or harm,” the court noted. Simply being denied a transfer would not rise to this requirement.

The Supreme Court granted the plaintiff’s petition for certiorari. The Supreme Court is not determining whether the plaintiff was discriminated against due to her sex; rather, the Court is set to determine whether an involuntary transfer alone constitutes an adverse employment action under Title VII. Should the Court rule in favor of the plaintiff, this would significantly increase the number of cases that plaintiffs could bring against employers under Title VII, as it would negate the “significant disadvantage” requirement and otherwise up-end years of case law on what constitutes an adverse employment action.

Regardless of the outcome, employers should diligently document their decision-making process with respect to transfers and other major employment decisions. Doing so will assist employers in defending against claims premised upon a transfer. This will become especially important if the Court removes the “significant disadvantage” requirement that many courts have recognized for Title VII claims.

Do you have questions about how to establish best practices with respect to documenting employment decisions such as transfers? Is your business being accused of discriminatory conduct? Do you need insight to ensure your business is protected from legal exposure related to transfers or other significant employment decisions? Let’s connect.

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