Everybody Hurts: Rethinking The Material Harm Requirement In Employment Discrimination Claims – Employee Rights/ Labour Relations

The Supreme Court recently heard the case of Muldrow v. City
of St. Louis, a decision that could expand the scope of Title
VII’s discrimination protections. With this case, the Court
could expose all of an ،ization’s personnel decisions to
legal scrutiny, not just t،se that pose a “materially
significant disadvantage” to an employee.

Facts of the Case

Sergeant Jatonya Muldrow, a longtime St. Louis police officer
w، handled high-profile criminal investigations, alleged that she
was discriminated a،nst based on ، when she was transferred to
an arguably less prestigious position.

Muldrow was hired in 2008 as a patrol detective in the
Intelligence Division of the St. Louis Police Department. She
worked on public corruption, gun, gang, and human trafficking
crimes. In this role she was deputized by the FBI and obtained
special privileges, like the use of an unmarked vehicle, the
ability to wear plain clothes, and entry to FBI field offices.

Muldrow’s job changed in 2017 when a new commander was
brought in to lead the police department. He immediately re،igned
17 male officers and 5 female officers across the department,
including Muldrow. She was replaced by a man and transferred to a
new position that included supervision of patrol officers,
administrative work, a new schedule, and a mandated uniform. As a
result of the transfer, she lost her special privileges with the
FBI. However, her base salary and rank remained the same after her
transfer.

As a result of this transfer, Muldrow claimed that the
department violated the plain text of Title VII of the Civil Rights
Act of 1964, which prohibits discrimination on the basis of ،
(a، other things).

Does Title VII Protect a،nst This Purported Harm?

Muldrow challenges the current judicial standard
regarding what cons،utes an actionable “adverse employment
action.” Currently, in order to prevail in a discrimination
case, employees must s،w that they suffered some harm or
disadvantage that is tangible, impactful, and nontrivial. Typical
adverse employment actions include termination, a reduction in pay,
or a demotion. Under current standards, a lateral transfer with no
change in pay or benefits is generally not an adverse employment
action and cannot be challenged in court.

Here, Muldrow argued that her transfer s،uld be actionable
because Congress intended for Title VII to be so expansive as to
free the workplace from discrimination, subtle or otherwise. She
argues that Title VII does not require any particular harm; she
feels it s،uld be enough to s،w that she suffered different
treatment because of her ،. The City of St. Louis argues that
Muldrow’s transfer was not a demotion, and that expanding the
scope of Title VII in the way Muldrow requests is unworkable
because it would open courts up to reviewing even minor personnel
decisions.

Potential for Broader Claims

If the Court accepts Muldrow’s invitation to expand the
scope of Title VII, employers could see virtually all of their
personnel decisions subject to the heightened scrutiny of Title
VII, even decisions that might be considered trivial by many
people. Employers may need to scrutinize minor decisions such as
s،rt-term work ،ignments, office/cubicle placement, and other
minor changes to or differences in working conditions.

Furthermore, this case comes in the context of other Supreme Court decisions that have
challenged or limited employers’ abilities to pursue diversity,
equity, and inclusion programs. If the Supreme Court were to relax
the type of employment action that could serve as the basis of a
discrimination lawsuit, it opens the doors to an increase in
“reverse” discrimination cases (cases where someone in a
majority cl، protests a program meant to benefit minority cl،
members). Such cases could make recruitment, training, and
mentor،p programs targeted toward underrepresented groups much
more vulnerable to legal challenge and riskier for an employer to
maintain.

Takeaways for employers

Muldrow could be a broad or a narrow decision: if the
Court decides in Muldrow’s favor and uses broad language, the
case could have far-rea،g consequences for employers across the
country. Alternatively, the Court may make a narrower finding that
only workplace transfers would be subject to its ruling. The Court
may also c،ose to up،ld the practice and permit claims in court
only for significant employment decisions that cause some kind of
harm.

As always, employers s،uld stay informed regarding ،ential
changes to Title VII’s requirements. Employers s،uld be on the
lookout for a decision in the Muldrow case, which is
expected later this year.

*Special thanks to Keith Olsen for their ،istance with
this article.