Lowering the Bar: The Degree of Harm Requirement, Revisited and Revised in Muldrow v. City of St. Louis 

By Nakota G. Wood and James V. Thompson 

To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. 

Muldrow v. City of St. Louis, 144 S. Ct. 967, 974 (2024). 

In the Muldrow case, the United States Supreme Court clarified the standard of damages a claimant must show in order to succeed in a Title VII discrimination claim based on a job transfer.  The Court determined that the discriminatory job transfer need not cause a significant injury or employment disadvantage; the discriminatory transfer simply must cause some harm respecting an identifiable term or condition of employment.  The requirement such harm be significant is not mandatory. 

Title VII

As a reminder, Title VII prohibits employers from “fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.S. § 2000e-2(a)(1).  While the justices in Muldrow did address as an aside the prohibition on retaliation on the basis of race, sex, etc., the question here specifically involved discrimination of a current employee who sustained a job transfer.

Prior to Muldrow

To hold employers liable under Title VII, employees were once required to show they had suffered significant harm. For example, in Boone v. Goldin, the Fourth Circuit determined that a job transfer which resulted in no change to the employee’s “grade, salary, benefits, level of responsibility, or title” did not constitute a “significant detrimental effect.” 178 F.3d 253, 256 (4th Cir. 1999). Due to the absence of a substantial harm, the employee’s claim failed. Id. 257.  Justice Kagan, writing the majority opinion in Muldrow, cited to other examples where the “significance” of the job transfer’s detrimental effect lay in the eye of the beholder.  In the cited examples, she still noted such job transfer discrimination claims were rejected by various Circuit Courts of Appeal because the courts seemingly rewrote Title VII to compel a showing of harm not stated in the statutory text.

The Muldrow Decision 

Muldrow v. City of St. Louis presented the Supreme Court with the opportunity to provide clarity and resolve the Circuit split over “whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm . . . .” 144 S. Ct. at 974. In a unanimous opinion, the Supreme Court held that they would not “‘add words to the law’” to achieve what some employers might think [to be] ‘a desired result.’”  Id. 976.

Sergeant Jatonya Clayborn Muldrow filed suit against her employer, the St. Louis Police Department (City of St. Louis), and claimed that she was transferred to a different job because she was a woman. Id. 971. Sergeant Muldrow claimed that she “suffered sex discrimination with respect to the ‘terms [or] conditions of her employment.’” Id. The lower courts granted summary judgement for her employer because Sergeant Muldrow had not shown that this job transfer caused her a “significant” employment disadvantage. Id. 972

For nine years prior to her job transfer, Sergeant Muldrow worked as a plainclothes officer in her department’s specialized Intelligence Division. Id. Sergeant Muldrow “investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit.” Id.  Because of her position, Sergeant Muldrow was deputized by the Federal Bureau of Investigation which gave her “among other things, FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis.” Id.  Sergeant Muldrow also received praises from her outgoing commander for her strong worth ethic. Id. 

Despite these commendations, Sergeant Muldrow’s new commander ultimately replaced her with a male police officer because he believed this officer to be a “better fit” for the division’s “‘very dangerous’ work.” Id. This transfer resulted in Sergeant Muldrow being reassigned to a uniform position with the same rank and pay but with different responsibilities, perks, and schedule. Id. Sergeant Muldrow no longer worked with high-ranking Intelligence Division officials, but was in charge of the oversight of “the day-to-day activities of the neighborhood patrol officers.” Id. She also lost her FBI status and her take-home vehicle. Id. Instead of a set Monday through Friday schedule, she was placed on a rotating schedule which included weekend shifts. Id. 

In making their decision, the Supreme Court looked directly at the statutory language of Title VII and determined that Muldrow was required “to show that the transfer brought about some ‘disadvantageous’ change in employment or condition.” Id. 974. The Court reasoned that to “discriminate against” refers to “differences in treatment that injure” employees. Id. Discrimination is present in transfer cases when an employee is treated worse “‘with respect to’ – employment ‘terms [or] conditions.’” Id.  The Court noted the absence of the word “significant” or “any similar adjective” that would require an employee to meet a heightened bar. Id. 

Ultimately, the Court determined that a “significant harm” standard would require employees to prove more than the law as written by Congress required. Id. at 975. For employees now to establish a Title VII discrimination claim, they need only show “some harm” resulting from a job transfer that affected an identifiable term or condition of employment, whether that harm be significant or minor. 

The Impact of Muldrow 

The Muldrow opinion clarifies that discrimination by race, sex, color, religion, or nationality via a job transfer does not have to be proven with significant damages.  Apparently any level of harm or damages by such a discriminatory job transfer may be enough for a claimant to prevail, so long as there is some degree of harm involved. However, Justices Thomas and Alito concurred in the overall judgment, but wrote separately.  Justice Thomas was not convinced that the lower appellate court necessarily imposed a heightened harm requirement in the form of some “significance” test.  He evaluated whether the employee here—and other employees bringing similar job transfer discrimination claims—sustained an actual disadvantage and not merely a minor change in employment—i.e., more than a trifling harm.  Id. 977.  Nonetheless, he concurred in the judgment, to the extent that the appellate court may have had a more stringent test in mind when it required that the plaintiff must show a “materially significant disadvantage.”  He, as apparently did the Muldrow majority, wanted to clarify that any significance of harm bar properly lay with a “more-than-trifling-harm” requirement.  Id. 978.  

Justice Alito questioned the practicality of the majority’s evaluation as guidance for lower court justices.  He noted that the basic definitions of “harm” and “injury” already incorporate some degree of significance or substantiality.  Yet, the guidance under the Muldrow opinion now is that Title VII plaintiffs must show the challenged event caused “harm” or “injury,” but not necessarily “significant” or “substantial” harm or injury.  Id. at 979.  Perhaps Justice Alito said it best when he stated, “I have no idea what this means . . . .” Id.  

Employer Takeaways

While it remains unclear how courts will interpret the new “some harm” requirement, employers need to be prepared. The majority opinion, along with the concurring opinions, clearly indicates a lowered hurdle for employees to prove Title VII discrimination. This lower bar will likely result in increased litigation surrounding job transfers, as it will be easier for employees to prove their cases.  Employers should be mindful when making personnel changes that would transfer employees from one job to another.  Job transfers should be made for legitimate, well documented reasons, and any potential adverse consequences from such transfers, even if unintentional, should be considered—especially if they may become the “some harm” later raised in an employee’s complaint.