The U.S. Supreme Court's decision in Muldrow v. City of St. Louis, Missouri, expands employers’ risk ... [+]
Yesterday, the U.S. Supreme Court issued a rare unanimous decision in Muldrow v. City of St. Louis, Missouri, without much fanfare. But employers should pay attention. The decision expands employers’ risk of discrimination claims by more broadly defining the types of employment actions that employees may challenge as unlawful. While some critics of corporate diversity, equity, and inclusion efforts had suggested that the decision might jeopardize DEI programs, legal experts say that concern is misplaced.
Lowering The Bar To Challenge Employment Actions
Title VII of the Civil Rights Act of 1964 (Title VII) is the primary federal antidiscrimination statute governing private employers with 15 or more employees. Title VII prohibits employers from discriminating against employees with respect to “compensation, terms, conditions, or privileges of employment,” on the basis of race, color, religion, sex, or national origin.
Courts have long held that employees must prove that they suffered an adverse employment action to pursue a Title VII discrimination claim. It’s not enough for an employee to experience workplace bias based on a protected identity. The bias must result in a job-related disadvantage. Courts have agreed that major decisions such as refusing to hire, firing, demoting, reducing pay, or denying a promotion can all meet the requirement of an adverse employment action. The issue in Muldrow was whether a job transfer without any change in rank or salary can also be challenged in a discrimination claim.
Jatonya Muldrow was a sergeant with the St. Louis Police Department, where she worked a regular weekday schedule on high-profile public corruption and human trafficking cases in the Intelligence Division. The FBI had deputized Muldrow as a Task Force Officer, entitling her to use an FBI-issued vehicle. The City’s new commander transferred Muldrow to another unit to fill her position with a male officer. The transfer did not change Muldrow’s title or reduce her compensation. But Muldrow’s new position had a rotating schedule that included weekends, less prestigious administrative responsibilities, revocation of her Task Force Officer status, and loss of her FBI-related privileges.
Muldrow sued the City of St. Louis for discrimination, alleging that she was transferred because she is a woman. The lower courts dismissed Muldrow’s Title VII claim. The lower courts held that even if Muldrow’s transfer was because of her sex, she had not alleged a “materially significant disadvantage” as a result. On appeal, the Supreme Court reversed the outcome by lowering the bar for employees to bring Title VII discrimination claims.
The Supreme Court held that an employee must only show “some harm” involving “an identifiable term or condition of employment” in order to support a Title VII claim. Employees no longer need to show that their job-related harms are “significant.”
The Court based its decision on the statutory language, which bars all forms of discrimination involving the terms, conditions, and privileges of employment. The Court explained that “discrimination” simply means to “treat worse.” The law contains no “significance” requirement or other hurdle for how large the harm must be. Any harm to a term or condition of employment will suffice. The Court held that if Muldrow could properly prove her allegations about her job transfer, she would overcome this low bar “with room to spare.”
Key Takeaways For Employers
Employment decision makers should be aware that although Muldrow involved a sex discrimination claim based on a job transfer, the Court’s reasoning will apply more broadly. The holding also governs Title VII claims involving race, color, religion, and national origin.
In addition, the Court’s minimal “harm” standard likely will apply to a wide range of managerial decisions—beyond just job transfers—that similarly involve no reduction in title or pay. “The new standard will require courts to evaluate other actions like performance improvement plans, negative evaluations, and threats to fire or demote employees that are not carried out,” explained Professor Sandra Sperino, an employment law expert at the University of Missouri School of Law, who responded via email.
Muldrow’s lowered harm standard may also put employers at risk for discriminatory changes to workplace flexibility, such as revoking remote, hybrid, or flextime options. When describing potential “harms,” the Court referred to changes in “responsibilities, perks, and schedule,” including changes to “the what, where, and when” of an employee’s work responsibilities.
Sperino noted that “the Court did not resolve the question of whether the harm can be subjective harm to the particular employee.” However, studies find that employees often value workplace flexibility more than other benefits, compensation, and even pay raises. This research could provide more objective evidence to support a claim that discriminatory removal of workplace flexibility meets Muldrow’s “some harm” test.
Highlighting The Need For Bias Reduction Practices
The Supreme Court dismissed concerns that lowering the bar on Title VII’s “harm” standard will expose employers to a flood of discrimination lawsuits. An employee must still prove that an employer acted for a discriminatory reason. In Muldrow’s case, for example, she will not succeed just because her job transfer can now meet the lower “harm” test. Muldrow must still prove that she was transferred because of her sex in order to prevail.
This means that employers’ best line of defense remains the same as before the Muldrow decision. Employers should continue to focus on adopting best practices for reducing the ways that employee evaluations can be impacted by bias on the basis race, color, religion, sex, and national origin. Focusing on objective evaluation criteria, documenting performance-based reasons for all managerial decisions, conducting internal audits on diversity outcomes, and educating decision makers about the sources of bias will continue to reduce employers’ risk of discrimination claims.
Well-Designed DEI Programs Should Not Be At Risk
Before the Supreme Court’s decision, some employment lawyers and conservative pundits had suggested that the Muldrow case might end up jeopardizing corporate DEI programs. The concern was that eliminating the “significant” harm requirement for a Title VII claim might allow white employees to bring reverse discrimination claims challenging DEI efforts to support Black workers or members of other underrepresented groups. According to legal experts, however, this concern is overstated.
“I do not think the Muldrow decision heralds the end of DEI efforts, nor should it,” said Professor Tristin Green, a discrimination law expert at Loyola Law School, who responded via email. “Anti-DEI groups get the law wrong when they insist that employees can now succeed in a Title VII claim whenever they experience ‘discomfort’ in a bias training, for example,” said Green. “Most corporate DEI programs are aimed at reducing discrimination,” Green explained, which is “consistent with the law of Title VII and should be defended on that ground.”
In other words, well-designed employer DEI programs do not impose “harm” on white employees, even under the expanded definition in Muldrow. DEI programs are typically designed to ensure equal employment opportunities by providing bias training and building more inclusive workplaces. On the other hand, any program that involves actual race-based hiring or promotion quotas or race-restricted workplace benefits would have violated Title VII even before the Muldrow decision. “I may be wrong, but I just don’t see this DEI thing as a thing,” said Professor Suja A. Thomas from the Illinois College of Law when interviewed for an 2023 Washington Post article about the potential impact of the Muldrow case.
