In a unanimous 9-0 decision, a case decided last week changed the scope of how to view discriminatory actions of job or lateral transfers which seemingly have little to no impact on the employment opportunities of an employee. Muldrow v. City of St. Louis No. 22-193 (2024) out of the 8th Circuit, asked the question: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?” The Supreme Court ruled yes.
The facts of the case (and reported in the EPTW (12/19/23)) are as follows: Clayborn Muldrow, a woman, was transferred to a position of a patrol detective from the Department's Intelligence Division, a preferable job which had better opportunities for pay and overtime and promotion. Because her rank, pay, and responsibilities remained the same, the Eighth Circuit held that the transfer was legal. No harm, no foul. The 8th Circuit ruled that there has to be a “significant” employment disadvantage for it to be discriminatory.
Various courts in the meantime were rethinking what it means to be discriminatory. For example, in Hamilton v. Dallas County, No 21-10133 (Fifth Circuit Court of Appeals, 8/18/23), Dallas County set a policy that clearly favored men over women. A sex-based scheduling system for jail guards in the Dallas County Sheriff’s Department was established that allowed female officers equal time off, but only during weekdays or by a combination of one weekday and one weekend day. Men could have the full weekend off. Female detention officers sued the county alleging those changes to the policy for scheduling days off constituted sex discrimination under Title VII.
The Supreme Court followed this trend. The justices rejected the legal standard the 8th Circuit Court of Appeals stating that Title VII claims centered on job transfers do not have a "'significant' employment disadvantage," finding these restrictions are not what the law intended. "To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment," Justice Elena Kagan wrote. "What the transferee does not have to show, according to the relevant text, is that the harm incurred was 'significant.'" As the court noted, “[m]any forced transfers leave workers worse off respecting employment terms or conditions.”
In the Muldrow case, her supervisor deemed the position too “dangerous” for Muldrow—whom he consistently called “Mrs. Muldrow” rather than “Sergeant,” which he used when addressing male officers. She was then moved into a line of progression that was less favorable to the one she was in, even though she did not lose any pay or benefits. After the transfer, Muldrow no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division, instead supervising the day-to-day activities of neighborhood patrol officers. She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts. Her promotional opportunities were slowed down to a crawl.
The decision was thankfully narrow. It focused on the language of the statute, not the implications to other laws, like affirmative action. For example, justices posed a number of hypothetical cases of discrimination, such as employees receiving pink or blue pens, a blue office or a red office, an office with an alley view or an office with a park view, and so on. And if males got the blue office or one with a park view, was that discriminatory? If the ruling was broader, it could have significant impact on Diversity and Affirmative Action programs.
St. Louis also argued the decision will open a floodgate of litigation with the standard lowered. It is also argued that the lowered standard will lead to more lawsuits against DEI. The Supreme Court disagreed, but stated if so, then Congress will have to act to change the law. The takeaway for HR is when a lateral or job transfer is being done, note any changes that could impact promotional or salary opportunities to the employee because it could lead to EEO liability.
Source: Law360 4/17/24