U.S. Supreme Court Expands Actionable Employment Discrimination
In a unanimous decision released April 17, the U.S. Supreme Court expanded the scope of actionable employment discrimination in cases where an individual is transferred to a position which holds the same rank and pay but includes other “disadvantageous” changes, rejecting the notion that a transfer must result in “significant harm” to be actionable.
Under the Supreme Court’s ruling in Muldrow v. City of St. Louis, Missouri, an employee who claims discrimination related to a transfer need only show that the transfer brought about some “disadvantageous” change in an employment term or condition. The transferee does not need to show that the harm was “significant” or otherwise exceeded some heightened bar, a standard some appellate courts previously required. Writing for the Court, Justice Elena Kagen explained: “’Discriminate against’ means treat worse, here based on sex. But neither that phrase nor any other establishes an elevated threshold of harm. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm.”
By way of example, Muldrow worked for the St. Louis Police Department as a plainclothes officer in the Department’s specialized intelligence division. Under a new commander, Muldrow was transferred to a new unit and replaced with a male officer. While Muldrow’s rank and pay remained the same, her responsibilities, schedule and perks did not. The new position did not hold the same prestige and included fewer opportunities to work on important cases, as well as to network with commanding officers. The new position also included a rotating schedule requiring Muldrow to occasionally work on the weekends and did not include a take-home car.
The district court and court of appeals both concluded that Muldrow could not show actionable discrimination related to the transfer because the transfer did not result in a “significant” change in working conditions producing “material employment disadvantage,” particularly considering that she retained the same salary and rank. The U.S. Supreme Court overturned those decisions and confirmed that a transfer need only include a “disadvantageous” change to be actionable.
The U.S. Supreme Court’s decision follows in the wake of the decision from the U.S. Fifth Circuit (which covers Texas, Louisiana and Mississippi) in Hamilton v. Dallas County, which overturned nearly three decades of precedent limiting actionable adverse employment actions to “ultimate employment decisions.” In Hamilton, the Fifth Circuit expanded actionable discrimination to include any change in a “term, condition or privilege” of employment, such as the choice of shift which was at issue in that case.
Following the recent decisions in Muldrow and Hamilton, employers may see an increase in claims that previously would not have survived to trial. Employers can also expect an increase in the number of workplace discrimination claims filed with the Equal Employment Opportunity Commission related to changes in terms or conditions of employment which previously would have been too “insignificant” to be actionable. Employers should carefully consider whether a contemplated lateral transfer or other changes in the terms and conditions of employment would lead to “disadvantageous” changes that could expose the company to a discrimination claim.
Please contact Clerc Cooper or any member of Phelps’ Labor and Employment team if you have questions or need advice or guidance.
