In Muldrow v. City of St. Louis, 144 S. Ct. 967 (2024), the Supreme Court held that an employee challenging a job transfer under Title VII must show that the transfer brought about “some harm” with respect to an identifiable term or condition of employment, but that harm need not be significant. The case is important because it departs from the traditional view that an adverse employment action in discrimination cases generally requires a pecuniary harm. The revised “some harm” standard also calls into question the traditional standard for hostile work environment harassment established in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986) and Harris v. Forklift Sys., 510 U.S. 17, 114 S. Ct. 367 (1993), which included a “severe or pervasive” treatment element. Meritor Savings Bank and Harris call for a showing of pervasiveness or severity to establish discriminatory harassment. Since harassment is a type of discrimination, however, Muldrow’s recent decision that “some harm” suffices to show a discriminatory action under Title VII may call into question the Harris standard for harassment. .
Statutory Background
Title VII of the Civil Rights Act of 1964 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 individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). While a discriminatory adverse employment action is one route to establish Title VII discrimination, the Supreme Court has also interpreted this prohibition to encompass claims based on a discriminatory hostile work environment, rather than solely economic or tangible discrimination. The Harris Court elaborated on the previous Supreme Court ruling in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986) in describing hostile work environment discrimination:
As we made clear in Meritor Savings Bank, this language is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated.
As discussed below, this “severe or pervasive” standard may be called into question by the Muldrow decision.
Facts
Muldrow addresses whether the transfer of an employee could qualify as Title VII discrimination when her rank and pay did not change, but her responsibilities did. Slip op. at 2.
In short, Muldrow was a sergeant with the St. Louis Police Department who was transferred to a different department against her wishes. Id. She was transferred because her new superior explicitly wanted to replace her with a man, which he thought to be a better fit for the division’s “very dangerous” work. Id. The transfer was approved, and while her rank and pay remained the same, her “responsibilities, perks, and schedule did not.” Id.
The question for the Supreme Court in Muldrow was thus what level of harm must a plaintiff show to successfully challenge a job transfer as discriminatory under Title VII.
The Court’s Decision
The Muldrow Court reversed the decision of the lower court, finding that there is no heightened threshold of harm requirement imposed by Title VII, and that there need only be some “disadvantageous” change in an employment term or condition. Slip op. at 5.
The Court explained that the language of Title VII, i.e. “discriminate against,” refers to “differences in treatment that injure” employees. Id. The Court further explained, “To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.” Id., at 6. A plaintiff does not have to show “…that the harm incurred was significant … Or serious, or substantial, or any similar adjective suggestive that the disadvantage to the employee must exceed a heightened bar.” Id., at 6. The Court also explained that while “discriminate against” means to treat worse, imposing a threshold for the level of harm needed to show discrimination would be inconsistent with the text of the statute:
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.
Accordingly, the Court held that the lower courts erred in reading a heightened standard of harm into their analysis, and that if Muldrow’s allegations are proven, then she was in fact left worse off several times over. Id. at 10-11. The Court therefore remanded the case for further proceedings under the “proper Title VII standard,” which does not demand that the plaintiff demonstrate her transfer caused “significant” harm. Id.
Analysis
In sum, Muldrow held that an employee challenging a job transfer under Title VII must show that the transfer brought about “some harm” with respect to an identifiable term or condition of employment, but that harm need not be significant. This case marked a departure from the traditional view that an adverse employment action under Title VII required a pecuniary harm. It also calls into question the traditional “pervasiveness or severity” standard in discriminatory hostile work environment cases.
Muldrow held that a plaintiff must show “some harm,” but is not required to show a heightened level of harm to make out a discrimination claim, as Title VII is intended to address any harmful discriminatory treatment, not just treatment that causes significant harm. Thus, a plaintiff need not necessarily suffer an economic loss to make out an adverse employment action. This revised standard may also suggest that a workplace permeated with discriminatory intimidation, ridicule, and insult that alters the conditions of the plaintiff’s employment and creates an abusive working environment could be enough to establish a hostile work environment under Title VII, so long as the plaintiff can show some harm.
Special thanks to Hannah Wyatt for her work on this post!
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