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Supreme Court Poised to Eliminate Title VII Material Harm Requirement

Last week, the Supreme Court heard oral argument in Muldrow v. City of St. Louis, a key case involving the definition of an “adverse employment action” under Title VII of the Civil Rights Act of 1964. Specifically, the Court will determine whether a forced lateral job transfer violates the Act, without also requiring a plaintiff to show that the transfer otherwise caused a materially significant disadvantage for the employee. A change to this important threshold issue could have far reaching consequences.

The case involves on officer for the City of St. Louis Police Department who was transferred to a new role with generally similar working conditions purportedly on the basis of her sex. She brought a federal lawsuit alleging, inter alia, that her transfer was an adverse employment action based on gender discrimination.

The U.S. District Court for the Eastern District of Missouri held that “no reasonable jury could find that Plaintiff’s transfer rises to the level of a material change in employment necessary to demonstrate an adverse employment action.” Absent a material change in her employment, the court found no prima facie case of discrimination and granted summary judgment in favor of the City on her Title VII claim. The Eighth Circuit affirmed, stating an adverse employment action is “a tangible change in working conditions that produces a material employment disadvantage.”

Before the Supreme Court, Muldrow argued that the Eighth Circuit’s holding is at odds with Title VII § 703(a)(1)’s text because that text does not require “that an employee show a ‘significant disadvantage’ or meet any other heightened-harm requirement.” Rather, the necessary elements of Title VII § 703(a)(1) are only that an employer “(1) discriminated against her (2) in the terms, conditions, or privileges of employment (3) because of sex.” Therefore, she contended that the Eighth Circuit’s heightened-harm requirement improperly limits claims based on a transfer to only those where the plaintiff can show the transfer imposes a “significant disadvantage.” Several groups—including the ACLU, NAACP Legal Defense Fund, and National Women’s Law Center—have submitted amicus briefs in support of Muldrow’s position.

Conversely, the City of St. Louis insisted there must be some “objectively meaningful harm” with regard to a job transfer, relying on the statutory text and context of § 703(a)(1), which requires material, objective harm. The City argues that a per se rule is unworkable because not every job transfer harms an employee and such a rule is not supported by the statutory text, context, or a traditional statutory meaning. The City asserts that § 703(a)(1) must be read alongside § 703(a)(2), which prohibits certain adverse employment actions, and that therefore material, objective harm is required under Title VII.

The Supreme Court’s review addresses the circuit split between the circuits such as the First, Eighth and Second, which employ variations of a heightened harm standard, and those such as the Fifth and D.C. Circuits, which follow a per se rule. At oral argument, the Supreme Court justices’ questioning appeared to intimate that they would rule against a heightened harm requirement.

However, a ruling abolishing a heightened harm requirement could pave the way for a deluge of “reverse” discrimination lawsuits, especially in the context of the expansion Diversity, Equity and Inclusion (DEI) initiatives nationwide. Without a showing of objectively meaningful harm, those employer-sponsored programs that treat employees differently based on otherwise protected characteristics could now run afoul of Title VII, depending on the scope of the Supreme Court’s ruling. While not all programs would necessarily be jeopardized, they are likely to face greater scrutiny. Nevertheless, if the definition of an actionable adverse employment action expands, an increase in discrimination lawsuits of any kind will almost certainly follow.

For further guidance on addressing discrimination claims or implementing DEI programs in light of this developing law, contact Bob Brooks at rbrooks@apslaw.com, Mike Chittick at mchittick@apslaw.com, or Brendan Ryan at bryan@apslaw.com with any questions.

About The Author


Brendan F. Ryan

Brendan is a member of the firm’s Labor and Employment Law Group. Brendan’s practice primarily involves assisting employers in all aspects… Read More

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