The plaintiff in Muldrow, Sergeant Jatonya Clayborn Muldrow, was employed by the St. Louis Police Department as an officer in the department’s specialized Intelligence Division where she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. In 2017, the new Intelligence Division commander asked to transfer Muldrow out of the unit, against Muldrow’s wishes, so he could replace her with a male police officer. The new commander stated he believed a male officer would be a better fit because of the “very dangerous work” undertaken by police in the Intelligence Division. Muldrow v. City of St. Louis, 144 S. Ct. 967, 972 (2024). Muldrow claimed this transfer occurred because she is a woman and was thus in violation of Title VII. Although Muldrow’s reassignment did not affect her rank and pay, it did change her job responsibilities, perks, and schedule. After the transfer, Muldrow no longer worked with high-ranking officials, lost access to her take-home vehicle, and had a less regular schedule involving weekend shifts.
The Eighth Circuit affirmed the district court’s ruling granting the City of St. Louis’s summary judgment, holding that Muldrow could not show that the transfer caused her a “materially significant disadvantage” such as a diminution to her title, salary, or benefits. The ruling held that Muldrow had only established minor changes in working conditions, and this was not sufficient to show that she had suffered an adverse action, and thus could not state a cause of action for sex discrimination under Title VII. In essence, it was not sufficient that the transfer decisions affected the “conditions” of her employment. She was also required to show that the changes to the conditions of her employment were “significant.”
During oral arguments in December 2023, many of the justices appeared to embrace some version of the officer’s position that she was not required to show her transfer caused “significant harm” to show she was adversely affected. For instance, Justice Neil M. Gorsuch stated: “When you treat someone worse than another person because of race or sex, that’s kind of the end of it. . . . And there isn’t a further inquiry into how badly you treated somebody worse.” In an unlikely unanimous decision, the Supreme Court did side with Muldrow. In making their decision, the Supreme Court looked directly at the statutory language of Title VII determining that a “significant harm” standard would require employees to prove more than the law as written by Congress required. Justice Kagan, writing the majority opinion in Muldrow, made clear that the anti-discrimination provision of 42 U.S.C.S. § 2000e-3(a) was intended to create a workplace where individuals are not discriminated against because of protected traits like race and sex, and the provision does not distinguish between significant and less significant harms:
What the transferee does not have to show, according to the relevant text of 42 U.S.C.S. § 2000e-2(a)(1), is that the harm incurred was significant or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. “Discriminate against” means treat worse. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm.
Muldrow, 144 S. Ct. at 971.
The majority opinion addressed arguments presented by the defense that lowering the bar for establishing an adverse action would result in increased litigation surrounding job transfers. The Court noted that even if the decision lowered the standard for proving adverse actions, the courts retained multiple ways to dispose of meritless Title VII claims challenging transfer decisions:
In the City’s view, a significant-injury requirement is needed to prevent transferred employees from “swamp[ing] courts and employers” with insubstantial lawsuits requiring “burdensome discovery and trials.” . . . But there is reason to doubt that the floodgates will open in the way feared. As we have explained, the anti-discrimination provision at issue requires that the employee show some injury . . . It requires that the injury asserted concern the terms or conditions of her employment… Perhaps most notably, it requires that the employer have acted for discriminatory reasons—“because of ” sex or race or other protected trait. §2000e-2(a)(1). And in addressing that issue, a court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination. So courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions. But even supposing the City’s worst predictions come true, that would be the result of the statute Congress drafted. As we noted in another Title VII decision, we will not “add words to the law” to achieve what some employers might think “a desirable result.” Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so. By contrast, this Court does not get to make that judgment.
Muldrow, 144 S. Ct. at 976 (internal citations omitted).
Though the Supreme Court’s decision may be considered a huge victory for workers as it clearly lowers the hurdle for employees to prove Title VII discrimination and allows underrepresented groups to hold employers accountable for discriminatory practices that might have previously gone unchecked, some have stated the decision raises concerns for organizations actively pursuing DEI goals.
For instance, Muldrow can be used to more easily challenge employment programs aimed towards DEI efforts, such as affinity groups, fellowships, mentorships, or additional resources to attend conferences or training. Under Muldrow, a plaintiff may assert that they were discriminated on the basis of their protected class if they were not eligible for, or ultimately did not receive, these benefits or perks which previously may not have amounted to an adverse employment action. These types of claims in the past may have been characterized as minor and summarily dismissed, but now a plaintiff may sufficiently allege a claim to survive a motion to dismiss or, potentially, summary judgment.
Employers should not view the risk of a potential challenge under Muldrow to their DEI efforts as an indication they should abandon them completely. The best takeaway would be for employers to conduct a privileged review of their DEI efforts and policies and to identify any potential risks and assess the values of the workplace against that risk. The interests of equal employment opportunities for all are compelling and valuable even against the uncertain legal landscape.
