American Journal of Trial Advocacy

Photo Credit: The Federalist Society, Muldrow v. St. Louis [SCOTUSbrief], YouTube (July 29, 2024), https://www.youtube.com/watch?v=oM4XOc7tLm0

Authored by: Sydney F. Jeffcoat

Under Title VII, it is illegal for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion sex, or national origin.”[1] Thus, to comply, an employer cannot discriminate against an employee or potential employee based on one of those characteristics. Although this may seem like a plain and simple law to follow, courts across the country have struggled to define when an employee or potential employee is harmed because of one of these characteristics.[2] As a result, the Court sought to clarify the appropriate standard in Muldrow v. City of St. Louis.[3]

In Muldrow, Sergeant Jatonya Clayborn Muldrow, alleged that her employer, the St. Louis Police Department, discriminated against her based on her sex.[4] For almost ten years, Sergeant Muldrow served as an officer in the Intelligence Division of the St. Louis Police Department.[5] Muldrow’s commander left the Intelligence Division in 2017 and informed her successor that Muldrow was a great employee.[6] Disregarding the previous commander’s comments, the new commander transferred Muldrow out of the Intelligence Division and replaced her with a male officer.[7] Muldrow was then assigned to a position in the St. Louis Police Department’s Fifth District.[8]

As a result, many parts of Muldrow’s job changed. First, her job duties changed, as she was no longer able to work on public corruption and human trafficking cases and instead supervised the everyday activities of the neighborhood patrol officers.[9] Second, she now spent most of her time performing administrative tasks.[10] Third, she was stripped of her FBI credentials and her unmarked take-home vehicle.[11] Lastly, she began to work a sporadic schedule as compared to a traditional Monday to Friday schedule.[12] The only consistency that remained after the reassignment was her compensation and rank.[13] As a result, Muldrow sued the St. Louis Police Department alleging that she was transferred due to her sex.[14] The district court granted summary judgment and the Eight Circuit Court of Appeals affirmed because Muldrow could not show that her reassignment resulted in a “materially significant disadvantage.”[15] The United States Supreme Court granted certiorari.[16]

In Muldrow, the Court looked at the text of the statute to determine the appropriate standard for a Title VII claim.[17] In its analysis, the Court stated that the high bar of demonstrating that a change in employment must result in a “materially significant disadvantage” is nowhere to be found in the legislative text.[18] In an effort to make the standard as simple as the legislative text, the Court stated that a plaintiff must only show that “some harm” resulted from a change in employment.[19] The Court reasoned that the new standard will force the beholder of the claim to examine all kinds of disadvantages, not just materially significant disadvantages.[2o] However, this standard seems to make the test just as subjective as it was before. The only guidance the Court gave about how to apply this new standard is that the change must be “disadvantageous.”[21] While the bar is clearly much lower, defining what “some harm” is will most likely be an obstacle to the lower courts.[22] Is this standard too simple?[23] Will it lead to a flood of litigation in the courts?[24] Will this new standard even change the outcomes of Title VII claims?[25] These are the types of questions that the concurring opinions sought to address, but they will likely have to be addressed again in the future.

It will certainly be interesting to see if this new standard results in more confusion amongst the courts because of its subjective nature. There is no doubt that this new standard will make it much easier for plaintiffs to bring a claim under Title VII because of the low bar that must be met. Thus, employers should carefully evaluate any changes to an employee’s job to make sure it does not relate to an employee’s protected status, as even minor changes can now result in a lawsuit due to the low bar.[26] Furthermore, many predict that this decision will have a great impact on Diversity, Equity, and Inclusion hiring programs.[27] In the end, it will depend on how the beholder of the Title VII claim defines “harm” to determine the outcome.

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[1] 42 U.S.C. § 2000e-2(a)(1).

[2] See, e.g., Caraballo-Caraballo v. Correctional Admin., 892 F.3d 53, 61 (1st Cir. 2018) (stating that an employee must show that the action left them with “significantly different responsibilities”); Webb-Edwards v. Orange Cty. Sherriff’s Office, 525 F.3d 1013, 1033 (11th Cir. 2008) (stating that the employee must show that the action resulted in a “serious and material change”); Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (stating that an employee must show that the action resulted in a “materially significant disadvantage”); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004) (stating that the employee must show that the action had a “significant detrimental effect”); O’Neal v. Chicago, 392 F.3d 909, 911 (7th Cir. 2004) (stating that an employee must show they suffered a “materially adverse employment action”); Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir. 1998) (stating than an employee must show more than a “mere inconvenience or alteration of job responsibilities”).

[3] 601 U.S. 346 (2024).

[4] Id. at 350.

[5] Id.

[6] Id. at 350-51 (“In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a ‘workhorse’–still more, that ‘if there was one sergeant he could count on in the Division’, it was Muldrow.”) (quoting Muldrow v. City of St. Louis, No. 4:18-CV-02150-AGF, 2020 WL 5505113, *1 (E.D. Mo. Sept. 11, 2020)).

[7] Muldrow, 601 U.S. at 351.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Muldrow, 601 U.S. at 351.

[14] Id.

[15] Id. at 352.

[16] Id. at 353.

[17] Id. at 353-54.

[18] Id. at 355 (“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.”).

[19] Muldrow, 601 U.S. at 354 (“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.”).

[20] Id. at 355-56 (stating that appellate decisions were reaching different conclusions because “the answers [lied] in the eye of the beholder,” and as a result, workers were required to show a harm “that the statutory text [did] not require”).

[21] Id. at 354.

[22] See id. at 362 (Alito, J., concurring) (“I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.”).

[23] But see id. at 364-65 (Kavanaugh, J., concurring) (arguing that the new standard is not simple enough because the text of the statute does not require a showing of harm once it is proven that an employer’s action is discriminatory).

[24] Id. at 358 (rejecting the defendant’s public policy objection that the new standard will cause “the floodgates [to] open in the way feared”); see also Stephanie L. Adler-Paindiris et. Al., U.S. Supreme Court: Alleging Discriminatory Transfer is Sufficient Harm to Bring Title VII Claim, Jackson Lewis (Apr. 25, 2024), https://www.jacksonlewis.com/insights/us-supreme-court-alleging-discriminatory-transfer-sufficient-harm-bring-title-vii-claim.

[25] Muldrow, 601 U.S. at 363 (Alito, J., concurring) (arguing that this decision will have no effect on Title VII claims because judges will continue to do what they have previously done by using different wording).

[26] Christopher Wilkinson and Jeremy Wright, Muldrow Sets a New Standard for Workplace Discrimination, Perkins Cole (Apr. 24, 2024), https://perkinscoie.com/insights/update/muldrow-sets-new-standard-workplace-discrimination.

[27] See Stephanie L. Adler-Paindiris et. al., U.S. Supreme Court: Alleging Discriminatory Transfer is Sufficient Harm to Bring Title VII Claim, Jackson Lewis (Apr. 25, 2024), https://www.jacksonlewis.com/insights/us-supreme-court-alleging-discriminatory-transfer-sufficient-harm-bring-title-vii-claim; Christopher Wilkinson and Jeremy Wright, Muldrow Sets a New Standard for Workplace Discrimination, Perkins Cole (Apr. 24, 2024), https://perkinscoie.com/insights/update/muldrow-sets-new-standard-workplace-discrimination.