It’s Now Easier to Prove Discrimination With Job Transfer or Other Change in Terms or Conditions of Employment

David R. Bohm

By David R. Bohm

discriminationJaytona Muldrow was a plainclothes sergeant in the St. Louis City Police Department’s specialized Intelligence Division. In connection with her duties in the Intelligence Division, Muldrow was deputized as a Task Force Officer with the FBI and was granted FBI credentials and an unmarked take home car. When a new captain was assigned to supervise the Intelligence Division, the Police Department transferred Muldrow from the Intelligence Division (at the new captain’s suggestion) to a uniformed position in the City’s 5th District, supervising the day-to-day activities of neighborhood patrol officers. While Muldrow’s rank and pay remained the same, her responsibilities, perks and schedule did not. She no longer worked with high-ranking officials in the police department, lost her FBI credentials and the take-home car, and had to work weekends (while in the Intelligence Division she worked Monday through Friday).

Muldrow filed suit against the City of St. Louis under Title VII of the federal Civil Rights Act in the federal District Court for the Eastern District of Missouri, claiming she was transferred because she was a woman. The District Court granted summary judgment in favor of the City, holding that Muldrow’s transfer did not cause her a materially significant disadvantage, as it did not result in a diminution of her title, salary or benefits and had caused only a minor change in her working conditions. The Eighth Circuit Court of Appeals affirmed the decision of the District Court.

In Muldrow v. City of St. Louis, issued April 16, 2024, the U.S. Supreme Court reversed the decision, holding that it was not necessary to show that an injury resulting from an action taken by an employer because of an employee’s protected status (e.g., sex, race, religion, or national origin) resulted in significant injury. Instead, Justice Kagan, writing for a six-member majority of the Court, stated that “an employee must (only) show some harm from a forced transfer to prevail in a Title VII suit…” (emphasis added). This same standard of “some harm” will also apply to any other change in the terms and conditions of employment made as a result of the employee’s protected status. The other three justices each wrote opinions concurring in the result.

In the past, employers were not generally held to be liable under Title VII for transferring an employee where the transfer did not affect the employee’s job title, salary, or benefits. What constitutes “some harm” for purposes of Title VII liability is something that will now have to be developed in future cases. Several possible examples come readily to mind. For instance, it is likely that an employee transferred to the evening or “graveyard” shift, or from weekdays to weekends, will claim that they were harmed by such transfer, in that it makes it more difficult to care for and interact with their family. As another example, an employee transferred from one city to another without their consent is likely to claim they were damaged by such transfer.

Of course, an employee filing a claim of discrimination will still have to present evidence to support the claim they were transferred (or other terms or conditions of employment were changed) due to their protected status. If an employee meets this burden, the transferred employee’s claim is much more likely to reach a jury than in the past.

In the future, before transferring an employee belonging to a protected class between locations or shifts (even if the transfer does not involve a reduction in compensation or benefits, or a change in title) best practices will require the employer document non-discriminatory reasons for making the transfer. Generally, the employer should put in writing objective reasons why the transfer will benefit the employer or why the employee was not a good fit at the location they worked prior to the transfer. In addition, the employer should discuss the reasons for the transfer with the employee. If possible, the employer should obtain the employee’s agreement to accept the transfer in writing. Following these suggestions will reduce the likelihood an employer will be sued for discrimination due to transferring an employee.

Posted by Attorney David R. Bohm. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation.

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