In a recently decided case, the U.S. Supreme Court held that a job transfer may demonstrate adverse action even when the transfer does not result in a loss of pay or other benefit. A unanimous Court held in Muldrow v. City of St. Louis that an employee challenging the reason for a transfer must show that it brought about some harm as to an identifiable term or condition of employment, but that the harm need not be significant. This ruling may now make it easier for transferees to claim discrimination under Title VII, the federal workplace discrimination statute that prohibits discrimination on the basis of sex or gender in a way that affects terms and conditions of employment.
The plaintiff, a sergeant in the St. Louis Police Department’s Intelligence Division, investigated public corruption and human trafficking cases, oversaw the Gang Unit, headed up the Gun Crimes Unit, and was deputized as an FBI Task Force Officer. She could use an unmarked take-home vehicle and had authority to investigate cases outside the city.
In 2017, her outgoing commander told his incoming successor she was an outstanding employee. The new commander asked that she be transferred, against her wishes. The record also reflects that her new boss often referred to her as “Mrs. Muldrow”, rather than by her rank title. He recommended a male police officer to replace her in Intelligence, indicating the male was more suitable for this “very dangerous work.”
Although Sgt. Muldrow’s transfer to a uniformed position did not result in a reduction of rank or pay, other things changed. Her duties now consisted of approving patrol officers’ arrests, reviewing their reports, and handling other administrative matters, as well as doing some patrol work herself. Because she no longer worked in Intelligence, she lost her FBI status and the car privileges that came with these credentials. Additionally, her schedule changed to include working rotating weekends.
The sergeant sued, alleging the transfer was based on her gender. The trial court rejected her claim, finding the transfer did not create a “materially significant disadvantage.” The Eighth Circuit Court of Appeals upheld that decision. Seven years after the suit was first filed, the Supreme Court rejected the Eighth Circuit’s requirement that the employment action must bring about “significant harm” to the transferee, and instead held that some–but not “significant”–harm must occur for the claim to survive.
Looking to the words of Title VII, the Court noted that “discriminate against” means to “treat worse” because of the protected factor. To make this showing, the transfer must bring about a “disadvantageous change” in an “economic or tangible” term or condition of employment. The Court concluded that:
To demand “significance” is to add words to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more than the law as written. That difference can make a real difference for complaining transferees. By asking whether the harm to the transferee is significant, appellate courts have disregarded varied kinds of disadvantage.
The Court hinted that any fear about a flood of new cases alleging transfer-related harm would be a matter for Congress to address: “[W]e will not ‘add words to the law’ to achieve what some employers might think ‘a desirable result’.” The Court remanded the case to the trial court to apply this new standard of showing just some injury.
Of note, this holding does not alter the holding in Burlington Northern v. White that, for retaliation cases, plaintiffs must show “materially adverse” changes that cause “significant harm.”
In sum, employers considering job transfers should carefully analyze and be able to support the reason for the transfer, and who will replace the transferee and why. The wishes of the employee may play a role in the analysis, particularly where there the evidence of the reason for the change is not articulated. To the extent there may be valid business or economic reasons for a transfer, employers should be mindful that these transfers do not have a negative effect based on a worker’s protected class.
