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SCOTUS Clarifies That Job Transfer Can Constitute an “Adverse Employment Action” Even Absent Significant Harm

By Erika Jacobsen White

In a victory for employees, the U.S. Supreme Court made clear today that a job transfer can constitute an adverse employment action for the purpose of liability under Title VII, even absent significant harm.

In the case of Muldrow v. City of St. Louis, Missouri, et al., 2024 U.S. LEXIS 1816 (2024), the Court explained in an opinion delivered by Justice Kagan that the language in Title VII that 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 individuals race, color, religion, sex, or national origin[,]” requires an employee to show that a transfer, “brought about some disadvantage change in an employment term or condition,” but that such disadvantage need not be “significant.” Id. at *12-15.

Here, the employee, Sergeant Muldrow, alleged that she was transferred from a more prestigious role in the St. Louis Police Department’s specialized Intelligence Division to one where she supervised the day-to-day activities of neighborhood patrol officers. Although her rank and pay were unchanged, she lost her FBI status, the car that came with it, and she was shifted from a regular workweek to a rotating schedule. The Division commander who ordered the transfer often referred to Sergeant Muldrow as “Mrs.” instead of by her rank, and testified that the male officer was “a better fit for the Divisions[‘] dangerous work.” Id. at 8. Sergeant Muldrow sued for sex discrimination.

Reversing the 8th Circuit Court of Appeals, the Supreme Court explained:

That language requires Muldrow to show that the transfer brought about some disadvantageous change in an employment term or condition. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80 (1998). The words discriminate against, we have explained, refer to differences in treatment that injure employees. Bostock v. Clayton County, 590 U. S. 644, 681 (2020). Or otherwise said, the statute targets practices that treat[ ] a person worse because of sex or other protected trait. Id., at 658. And in the typical transfer case, that worse treatment must pertain to must be with respect to employment terms [or] conditions. 2000e-2(a)(1). The terms [or] conditions phrase, we have made clear, is not used in the narrow contractual sense; it covers more than the economic or tangible. Oncale, 523 U. S., at 78; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986). Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable [*14]  term or condition of employment.

What the transferee does not have to show, according to the relevant text, is that the harm incurred was significant. 30 F. 4th, at 688. Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. See supra, at 4, and 4-5, n. 1. Discriminate against means treat worse, here based on sex. See, e.g., Bostock, 590 U. S., at 657-658, 681. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand significance is to add words and significant words, as it were 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 of her than the law as written.

And that difference can make a real difference for complaining transferees. Many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better [*15]  off.) But now add another question whether the harm is significant. As appellate decisions reveal, the answers can lie in the eye of the beholder and can disregard varied kinds of disadvantage. Take just a few examples from the case law. An engineering technician is assigned to work at a new job site specifically, a 14-by-22-foot wind tunnel; a court rules that the transfer does not have a significant detrimental effect. Boone v. Goldin, 178 F. 3d 253, 256 (CA4 1999). A shipping worker is required to take a position involving only nighttime work; a court decides that the assignment does not constitute a significant change in employment. Daniels v. United Parcel Serv., Inc., 701 F. 3d 620, 635 (CA10 2012). And a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not significant. Cole v. Wake Cty. Bd. of Educ., 834 Fed. Appx. 820, 821 (CA4 2021) (per curiam). All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.

Muldrow v. City of St. Louis, 2024 U.S. LEXIS 1816, *13-15.

This important decision makes clear that employers cannot force a job transfer because of an employee’s protected status if such a transfer puts the employee in a worse position than they were before.

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