Harm Redefined in US Workplace Discrimination

Last month, the US Supreme Court handed down the Muldrow decision. An immediate practical impact of this decision is that courts will use a different definition of “harm” in employment discrimination claims brought under Title VII. In the aftermath, commentary has emerged about the broader Diversity, Equity, and Inclusion (DEI) consequences of the decision.  

Background to Muldrow 

In Muldrow v City of St Louis Missouri, a female police sergeant was transferred by a new supervising officer to a different division so that a man could instead do the “dangerous work” she had been performing for years. Muldrow’s new supervising officer also routinely referred to her as “Mrs” instead of Sergeant.   

In her new role, Muldrow’s pay and rank remained the same, but she alleged it was a lesser role because her perks, schedule, and responsibilities changed – namely, she now had to wear a uniform rather than being a plainclothes officer, work weekends, and lost her FBI credentials and work vehicle. She also lost access to opportunities to work on important investigations.   

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination with respect to compensation, terms, conditions, or privileges of employment based on race, color, religion, sex, and national origin. In Muldrow, the Defendants prevailed on summary judgment in the Eastern District of Missouri. The Court there found Muldrow was required and did not show that her transfer created a ‘“significant’ change in working conditions by applying the substantial harm test. The Eight Circuit affirmed the lower court’s decision, and the Supreme Court took the case to resolve a circuit split as to whether a plaintiff must demonstrate a heightened threshold of harm when challenging a transfer under Title VII.  

Ultimately, the Supreme Court decided that Title VII does not explicitly require a showing of substantial harm, reversing the lower courts, finding instead, “[a]lthough an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test. Title VII’s text nowhere establishes that high bar.” 

The Potential Impact on DEI Programs 

There is a great deal of speculation that Muldrow may be used by future litigants in reverse discrimination claims under Title VII as a means of challenging DEI or affinity programs open only to certain groups of employees.  The Court’s holding that harm need not be significant could make it easier for employees to challenge programs reserved for people of certain ethnicity or gender – and that their exclusion from such a group resulted in harm recognized by Title VII.  

However, it’s important to remember that legal decisions are always based on the unique facts of a given case.  

If you’re concerned about the legality of a current or proposed DEI program at your company, we suggest speaking with a qualified employment attorney before implementing it, given the ever-changing legal landscape in this area.  

Action Steps for Employers 

The Muldrow decision may increase the risk of discrimination claims in situations where an employee perceives a transfer has left them worse off.  

However, it’s important to remember that the decision does not prohibit employers from ever moving an employee into a position with less prestige or worse hours. The decision applies to employers who do this based on a trait protected under Title VII.  

Through the legal lens, employers should consider:  

• Reviewing your practices related to employment decisions. It’s critical that your team accurately documents its reasons for decision making, including as it relates to disciplinary actions, promotions, transfers, or changes in benefits, such as scheduling, reassignment of work, and perks.  

• Conducting a review of your existing promotion and transfer practices to identify any potential risks following the Muldrow decision. Consult with an employment attorney to create a plan to reduce any identified risks.  

• Completing teamwide training on microaggressions. (We discussed the far-from-micro impact of microaggressions in an earlier post) 

If you need help managing your workplace policies, reach out. Our attorneys would love to work with you.  

• Employment Law