On April 17, 2024, in Muldrow v. City of St. Louis, the Supreme Court changed the test for determining whether an employer violates Title VII's anti-discrimination provisions when it transfers an employee even if the transfer does not result in a loss of pay or benefits. Instead of having to show that the employee's job transfer resulted in "significant harm," the employee now only needs to show that the transfer resulted in "some harm."

This decision will likely result in an increase of Title VII discrimination claims because now even minor adjustments to an employee's role may allow an employee to state a prima facie claim of discrimination. The decision also opens the door for increased litigation over application of the new standard. We expect courts and litigants to grapple over the distinction between "significant harm" and "some harm."

How can employers respond to the decision? Employers should more closely scrutinize internal transfers. Employers should also more closely review other changes to an employee's terms and conditions of employment like changes to work from home schedules or office location transfers.  

Facts of the Case

Sergeant Jatonya Clayborn Muldrow was employed by the St. Louis Police Department in the specialized Intelligence Division. As part of her duties, she was responsible for high level investigations. She worked as a plainclothes officer, maintained a Monday-Friday schedule, and had opportunities to network with high-ranking individuals in the department. She was also deputized as an officer with the FBI which provided her with FBI credentials and access to an unmarked police vehicle. 

In 2017, a new commander took over the Intelligence Division and decided that Muldrow should be transferred. Muldrow was replaced by a man. Muldrow was reassigned to a uniformed position and supervised neighborhood patrol officers. She no longer worked with high-ranking officials on high level investigations and lost access to her police vehicle. Her schedule also changed from the standard Monday-Friday schedule to a rotating one that included weekend shifts. Although her rank and salary did not change, Muldrow claimed that the work was less prestigious and less challenging than her position in the Intelligence Division.

Muldrow brought a claim against the City asserting violations of Title VII based on sex discrimination. The district court granted summary judgment and the Eighth Circuit affirmed. Both courts found that the terms and conditions of Muldrow's employment after the transfer did not cause "a materially significant" disadvantage as required by Title VII. 

What Does Title VII Say?

Title VII makes it unlawful for "an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." §2000-2(a)(1) (emphasis added). The parties agreed that a transfer is a type of "term, condition, or privilege of employment." 

The Supreme Court's Decision

The Supreme Court reversed, deciding that the lower district court and the 8th Circuit applied the wrong standard – the "significant harm" standard –  which was not found anywhere within Title VII. All that the text of Title VII required is that Muldrow show some injury as a result of her transfer to another department. Under the facts of this case, Muldrow's transfer met that standard.

Muldrow provided evidence that the transfer caused harm to her career. She was placed in a significantly less prestigious department, forced to work a shift schedule including weekends, lost her work vehicle, and was cut off from working with higher-ups. After finding favor with Muldrow's arguments, the Court then dismissed the City's counter-arguments.

The City argued that the "significant harm" test was found within Title VII by applying the principles of ejusdem generis. The Ejusdem generis canon says that a phrase following an enumeration of things should be read to encompass only things of the same, basic kind. So here, since the text of Title VII says that it applies to instances where an employer as "failed or refused to hire or discharged" an employee, Title VII should not apply to instances that are not of the same degree, like transfers. The Court rejected this argument and noted that the commonality between the enumerations in the statute was that they all originated from a wrongful act by the employer, not the level of harm. The degree of harm was not a sufficient basis upon which to characterize the statute's several parts. 

The City also argued that the Court should apply the same standard for Title VII discrimination claims as it is applied to Title VII retaliation claims. The City relied  primarily on Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, which required a retaliatory action by an employer to be "materially adverse" causing "significant harm" to satisfy a violation of Title VII. The Court was unpersuaded. The decision in White was meant to address employer actions serious enough to "dissuade a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68. Retaliation involves actions by the employer to punish an employee for bringing a claim. Discrimination seeks to foster a work environment without adverse employment actions based on an employee's status within a protected class.

Finally, the City argued that a decision in favor of Muldrow would flood the courts with new, meritless Title VII litigation. In rejecting this argument, the majority did not discount the City's concerns, but stated that it was bound by the textual limitations of Title VII and would not "add words to the law to achieve what some employers think 'a desirable result.'" 


As stated above, this decision – which is arguably limited only to internal job transfers – will likely increase Title VII discrimination claims arising from those specific scenarios because it lowers the bar for what an employee needs to show that he or she has been "harmed." Further, the decision does not impact the employer's ability to argue that it can avoid Title VII liability by showing a legitimate, non-pretextual reason for the job transfer. 

The decision however does mean that employers should more closely consider and evaluate internal job transfers to ensure they are not based on the employee's protected status. Adjustments in an employee's status or role with the company could be a new source of litigation risk. Employers should seek advice from counsel for ongoing guidance as to how to navigate situations involving employee transfers. 

The attorneys at WSHB will continue to monitor the developments surrounding the impact of the Muldrow decision and the application of the "some harm" standard. 

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