Supreme Court Clarifies Standard for Showing Harm Under Title VII

On April 17, 2024, the U.S. Supreme Court found that a Title VII plaintiff need only show they suffered "some harm" in an identifiable term or condition of employment, and need not show that the harm was "significant." The Court's decision, Muldrow v. City of St. Louis, resolves a split among the federal Circuit Courts of Appeal over whether a Title VII plaintiff needs to show a heightened threshold of harm, finding that "Title VII imposes no such requirement."

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The question presented in Muldrow is whether "an employee challenging a transfer under Title VII must meet a heightened threshold of harm-be it dubbed significant, serious, or something similar." The plaintiff, a female St. Louis police sergeant, sued the City of St. Louis after her new commander transferred her from the police department's prestigious Intelligence Division, where she had worked for nearly a decade. Following the transfer, the plaintiff maintained the same rank and pay, but her responsibilities were changed such that she became responsible for supervising day-to-day activities of neighborhood patrol officers rather than higher profile intelligence work, lost her role as an FBI Task Force Officer (and the associated take-home car), and began to work an irregular "rotating schedule," which included weekend work.

The District Court granted summary judgment to the City, finding that Muldrow had failed to show that this transfer constituted a "significant" change in the plaintiff's working conditions. The Eighth Circuit Court of Appeals affirmed that decision, finding that a Title VII plaintiff must show that a discriminatory job transfer results in a "materially significant disadvantage" for the employee.

On review, the Supreme Court rejected the notion that Title VII imposes a requirement to show a heightened threshold of harm. The Court held instead that, given the statutory language of Title VII prohibits "discriminat[ing] against" an individual with respect to the "terms [or] conditions" of employment because of that individual's gender, a plaintiff need only show that the transfer caused a "disadvantageous" change in an employment term or condition. The Court wrote, "To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. What the transferee does not have to show . . . is that the harm incurred was significant . . . . [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar." The Court reasoned that anything else would be to "impose a new requirement on a Title VII claimant," so that the law as applied demands "something more of her than the law as written."

Justices Thomas, Alito, and Kavanaugh filed concurring opinions. Justice Thomas wrote that he was unconvinced the Eighth Circuit had actually applied a heightened standard, and wrote that a Title VII plaintiff must show "more than a trifling harm." Justice Alito said the terms "harm" and "injury" already "incorporate at least some degree of significance or substantiality." Justice Kavanaugh wrote that "[t]he only question" is "whether the relevant employment action changes the compensation, terms, conditions, or privileges of employment," because "[t]he discrimination is [the] harm."

This decision follows the Supreme Court's June 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, in which a majority of the Court held that Harvard's and the University of North Carolina's consideration of race as a factor in admissions violates the Equal Protection Clause of the Fourteenth Amendment, and Title VI of the Civil Rights Act by extension. In that opinion, the majority wrote that "[e]liminating racial discrimination means eliminating all of it." Although the Students for Fair Admissions decision addressed college affirmative action programs, Justice Gorsuch noted in a concurrence that Title VI uses "essentially identical terms" as Title VII, and that both Titles "codify a categorical rule of individual equality, without regard to race." As discussed in our podcast, litigants are expected to continue the recent trend of using decisions like Students for Fair Admissions and Muldrow to challenge aspects of employer diversity, equity, and inclusion initiatives.