US Supreme Court Issues Decision in Muldrow v. City of St. Louis, Missouri, Resolving Circuit Split on Title VII Interpretation

On April 17, 2024, the Supreme Court issued its decision in Muldrow v. City of St. Louis, Missouri, et al., No. 22-193, authored by Justice Elena Kagan. In a unanimous decision, with Justices Thomas, Alito, and Kavanaugh separately concurring, the Court vacated a holding by the Eighth Circuit and remanded the case for further consideration. The Court held that an employee alleging a discriminatory job transfer must show that the transfer inflicted “some harm with respect to an identifiable term or condition of employment,” but, that such harm “need not be significant” to violate Title VII of the Civil Rights Act of 1964 (“Title VII”). Muldrow v. City of St. Louis, Missouri, 601 U.S. ----, at *2 (2024).

In Muldrow, the employee-plaintiff, a female police sergeant, alleged that she was forced to transfer jobs because her employer wanted to replace her with a male police officer, who her supervisor claimed would be a “better fit” for the “very dangerous” role. Id. at *3. Although the plaintiff’s rank and pay remained the same after the transfer, her duties, schedule, and position perks changed. The prestige and caliber of her responsibilities decreased, her schedule became less regular, and she lost access to an unmarked take-home vehicle, among other consequences.

Title VII makes it unlawful for an employer to “discriminate against any individual with respect to . . . terms [and] conditions . . . of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). The Court previously interpreted this statute to require a plaintiff to demonstrate some “disadvantageous” change in the employment terms and conditions. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). In order to prove a job transfer was disadvantageous, the Eighth Circuit had held that plaintiffs must prove that the job transfer caused a “materially significant disadvantage.” Muldrow at *1.

Muldrow rejected that interpretation. While a transfer must be “disadvantageous,” plaintiffs do not need to demonstrate that such harm was “materially significant.” Id. Thus, following Muldrow, plaintiffs need only show “some injury,” and do not need to meet any form of heightened standard to prove that a job transfer was disadvantageous. Id. at *7. And this injury, the Court clarified, need not be limited to “economic or tangible” changes in the terms or conditions of the plaintiff’s employment. Id. at *1.

Practically speaking, Muldrow may raise more questions for employers than it answers. The Court held that if a job transfer has left a plaintiff “worse off” with respect to her employment terms and conditions, and the transfer was made because of a protected characteristic, the transfer may violate Title VII. But the Supreme Court provided little guidance for determining when a transfer decision will leave a plaintiff “worse off,” other than clarifying that the harm need not be “significant.” As with many recent Supreme Court decisions in the employment space, e.g., Groff v. DeJoy, 600 U.S. 447 (2023), additional litigation is likely necessary to fully understand Muldrow’s implications. Given Muldrow’s rejection of the Eighth Circuit’s “materially significant disadvantage” standard, that litigation is likely forthcoming and employers should expect increased litigation surrounding otherwise “neutral” transfer and other employment decisions, including challenges to DEI policies.

O’Melveny’s Labor & Employment and Supreme Court & Appellate Litigation teams will continue to track developments on discrimination issues arising in the employment context. For any questions related to this topic, please contact the O’Melveny lawyer whom you work with or one of our Key Contacts.

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