A recent decision by the U.S. Supreme Court eases the standard for plaintiffs claiming their employer discriminated against them by moving them into a different position.

Specifically: on April 17, 2024, a unanimous Court held in Muldrow v. City of St. Louis that employees need only show “some” harm to advance a discrimination claim under Title VII of the Civil Rights Act of 1964, rather than “significant” harm.

The ruling is poised to affect how employers evaluate employee transfers and position changes. While employers could previously expect that a transfer — even involuntary transfers — would not be taken as “adverse employment actions,” the Muldrow ruling opens the door to discrimination claims asserting the employee suffered just “some” harm to their working conditions by virtue of the transfer.

The Muldrow Case and Title VII Rulings on Unlawful Transfers

The Muldrow case itself revolved around a sergeant’s involuntary transfer within the St. Louis Police Department. Plaintiff Jatonya Muldrow worked for nine years in the police department’s specialized intelligence division. Working in that division gave her access to certain “prestige,” such as an unmarked vehicle, heightened security clearance, and authority to investigate more high-profile crimes, such as gang violence and public corruption.

In 2017, the police department transferred Sgt. Muldrow to a more traditional “uniformed” position, assigning her with oversight of neighborhood patrol officers. The police department filled her position in the intelligence division with a male counterpart. The transfer deprived her of many of the perks she enjoyed in the intelligence division. Her rank, pay, and benefits, however, remained unchanged.

Muldrow subsequently sued the St. Louis Police Department under Title VII, alleging the unilateral transfer out of the specialized intelligence division was made unlawfully on the basis of her sex.

The U.S. District Court for the Eastern District of Missouri granted summary judgment against her discrimination claim, holding that the transfer did not result in any tangible “harm” to her career or working conditions. The U.S. Court of Appeals for the Eighth Circuit affirmed, stating in part: “This Court has repeatedly found that an employee’s reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action.”

Other federal appellate courts across the country had similar analyses for evaluating employee transfers — including the First Circuit and Second Circuit Courts of Appeals, spanning all of New York State and the New England region. These analyses held that an employee can almost never show the requisite “serious harm” required for a discrimination claim unless a transfer resulted in a decrease to their pay or benefits.
Still other federal circuits, however, had taken a more employee-friendly approach, ruling that employees need only show some harm to their working conditions, such as a decrease in prestige or rank. The Supreme Court took up the Muldrow case to resolve the dispute.

The New “Some Harm” Requirement and Cautions For Employers

Writing for the Court, Justice Kagan clarified that an employee alleging their transfer was discriminatory under Title VII need only show that their “transfer brought about some ‘disadvantageous’ change in [their] employment term[s] or condition[s]” —and that Title VII says nothing about “serious” or “significant” harm. Instead, such plaintiffs need allege only “some harm.”

The new standard breaks ground on uncertain territory for employers. Muldrow opens the door for discrimination claims premised on lateral transfers (or other actions) that did not negatively impact employees’ pay or benefits. Thus, employers are well-advised to evaluate whether transfers will negatively impact an employee’s “other” terms-and-conditions of employment, such as their advancement opportunities, authority, assignments, or even stature within the organization.

To be sure, Muldrow does not convert each and every transfer into a potentially-actionable discrimination claim. First, retaliatory transfer claims — as opposed to discriminatory transfer claims — will still require a showing of “serious harm,” as Title VII’s requirements for showing “retaliation” are distinct from showing “discrimination.” Further, within discrimination claims, putative plaintiffs will still need to allege, in good faith, that their transfer was occasioned “because of” a protected characteristic under Title VII, i.e., that their employer transferred them because of their sex, religion, race, or other characteristic. Well-documented reasons that illustrate the legitimate, non-discriminatory need for a transfer remain a viable best practice for employers. And other cases will lend themselves to more obvious need for a transfer, such as where an employee’s performance is clearly better suited for a different role.

Proactive employers should nonetheless consider whether existing policies on transfers and internal opportunities need revision to illustrate the organization’s commitment to nondiscrimination.
Finally, employers with Diversity, Equity, and Inclusion (“DEI”) programs or similar affinity groups should consider whether employees’ membership or activities in these groups triggers any inadvertent liability under Muldrow. The Court did not address DEI programs in Muldrow, but inclusion (or exclusion) from such programs might spark an employee challenge under Title VII, under the theory the programs offer differing benefits or terms-and-conditions of employment if made available for some employees and not others.

If you have questions or concerns regarding this development, please reach out to Harris Beach’s Labor and Employment or Appellate attorneys. You may contact attorney Ibrahim Tariq at (585) 419-8556 and itariq@harrisbeach.com, attorney Brian Ginsberg at (914) 298-3028 and bginsberg@harrisbeach.com, or the Harris Beach attorney with whom you most frequently work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.