Does transferring an employee to an equivalent but arguably less prestigious position based on their race, color, religion, sex, or national origin violate Title VII of the Civil Rights Act of 1964?
This case asks the Supreme Court to determine whether an employer’s decision to transfer an employee, motivated by discrimination but without a judicial finding of substantial detriment to the employee, contravenes Title VII. Petitioner Jatonya Clayborn Muldrow argues that her employer, the City of St. Louis Police Department, made a sex-based decision to reassign her from the police intelligence unit to a more peripheral position and thus violated Title VII, regardless of any judicial assessment of significant disadvantage. Respondent the City of St. Louis counters that Muldrow’s transfer was routine, and that a Title VII claim of discrimination requires demonstrable harm. The Court's decision in this matter will likely influence the scope of Title VII protections against workplace discrimination, thus distinctly affecting employment practices and operational efficiency. The Court’s decision will also impact the number of actionable employment decisions and potential lawsuits.
Questions as Framed for the Court by the Parties
Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage
Petitioner Sergeant Jatonya Clayborn Muldrow (“Muldrow”) had been a patrol detective in the Intelligence Division of the St. Louis Police Department (“Department”) since 2008 until her transfer in 2017. Muldrow v. City of Saint Louis at 684. She worked on cases involving public corruption, human trafficking, gun crimes, and gangs. Id. The position was a traditional eight-hour workday Monday through Friday. Id. at 685. During her assignment to the Intelligence Division, Muldrow was deputized as a task force officer by the FBI’s Human Trafficking Unit. Id. This deputization provided Muldrow with privileges equivalent to those of an FBI agent, including entry to FBI field offices, use of an unmarked FBI vehicle, and the potential to earn $17,500 in overtime pay. Id.
In 2017, the acting police commissioner appointed a male commander, Captain Deeba, to replace the female commander of the Intelligence Division. Id. Captain Deeba swiftly reassigned 17 male officers and 5 female officers from different ranks and positions across the Department. Id. Among them, Captain Deeba moved two male officers and two female officers, including Muldrow, completely out of the Intelligence Division. Id. Muldrow was moved to the Fifth District on June 12, 2017. Id. In her new role, Muldrow was required to carry out administrative tasks and supervisory responsibilities. Id. Due to the transfer, Muldrow lost her role as an FBI task force officer, had to work a rotating schedule that included weekends, and was no longer eligible for the $17,500 overtime pay, although her salary remained the same and other overtime opportunities were available to her. Id.
Ten days after her transfer, Muldrow filed a discrimination charge with the Missouri Department of Labor’s Human Rights Commission, alleging that the Department and Captain Deeba discriminated against her. Id. She was subsequently issued a right to sue letter to allow her to sue in state court on the alleged discriminatory act. Id. Simultaneously, Muldrow requested two different transfers from the Fifth District. Id. The captain of the Second District, Captain Coonce, informally requested for Muldrow to be her administrative aide. Id. at 686. Muldrow applied for that position and two other positions in the Department but did not receive any of these positions. Id. However, Muldrow was reassigned to the Intelligence Division and regained her status as a task force officer on February 5, 2018. Id.
Muldrow sued Respondent the City of St. Louis (“City”) in Missouri state court, alleging gender discrimination and retaliation for her reports of discriminatory practices, both in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Id. Additionally, she brought claims against both the City and Captain Deeba for gender discrimination under the Missouri Human Rights Act. Id. The City and Captain Deeba removed the case to the United States District Court for the Eastern District of Missouri. Id. at 687. The district court did not take the state law claims but granted a summary judgement for the City on both Title VII claims. The district court focused on whether the transfer to the Fifth District damaged Muldrow’s financial standing or career and concluded that the eight months spent in the Fifth District did not harm Muldrow. Muldrow v. City of Saint Louis at 19-23. The district court also determined that denying her transfer requests did not constitute harm to her and that the City was not accountable for the FBI's decision to revoke her task force officer status. Id.
Muldrow appealed to the United States Court of Appeals for the Eighth Circuit, which upheld the district court’s decision and analysis. Muldrow. The United States Supreme Court granted certiorari on June 30, 2023.
TEXTUAL MEANING OF TITLE VII
Petitioner Muldrow asserts that the St. Louis Police Department’s decision to transfer her was based on sex and thus violated Title VII because, under Title VII, employers cannot discriminate any employee on the basis of sex and other characteristics when they determine the employee’s compensation or the “terms, conditions, or privileges of employment.” Brief for Petitioner, Jatonya Muldrow at 14. Muldrow contends that the text of Title VII prohibits employee transfers on the basis of sex. Id. at 15. Analyzing the text of Title VII, Muldrow asserts that the definition of “discriminate” has been consistent since Title VII’s enactment: differential treatment of similarly situated groups. Id. at 15-16. Thus, Muldrow argues that sex-based job transfers constitute discrimination under Title VII by producing differential treatment of similarly situated groups. Id.
Interpreting the phrase “terms, conditions, and privileges” of employment, Muldrow further contends that her transfer violated Title VII. Id. According to Muldrow, when Title VII was enacted, “terms” included “requirements set by her employer, including when, where, and with whom she is required to work, and her title, tasks, and other job-related circumstances.” Id. Muldrow further defines “conditions” and “privileges” to mean working conditions and benefits that employers must guarantee. Id. at 17-18. Muldrow argues that the phrase “terms, conditions, and privileges” therefore includes a wide variety of employment decisions. Id. at 18-19.
Furthermore, Muldrow argues that the Eighth Circuit erroneously went beyond the words of Title VII by requiring that, to constitute a Title VII claim, the discrimination must impose a “materially significant disadvantage” against the employee. Id. at 25-26. Muldrow reads Title VII as categorically prohibiting all discrimination, not just discrimination satisfying the Eighth Circuit’s “significant disadvantage” test. Id. at 27. According to Muldrow’s reading of Title VII, the magnitude of the harm is irrelevant, because the transfer itself discriminates the employee and thus is enough for a Title VII claim. Id. at 28-29. Muldrow contends that the Eighth Circuit overstepped its authority with this interpretation of the statute, since the courts are supposed to interpret statutes as written rather than make new laws. Id. at 26-27.
Respondent the City of St. Louis (“the City”) responds that, to satisfy the “discriminat[ion] against” an employee under Title VII, the employee must make a showing of “objectively material harm” to the employee. Brief for Respondent, The City of St. Louis at 16-17. The City argues that, absent the showing of objective, material harm, Title VII will lose its enforcement power. Id. at 17. According to the City, the United States Supreme Court also held that the language “discriminat[ion] against” under Title VII requires material harm that would bother a reasonable employee and that must not be de minimis. Id. at 18.
The City further argues that the language of “discriminate against” mandates the showing of material, objective harm because, in the text of Title VII, “otherwise to discriminate against” follows the examples of specific illegal discriminatory actions—“fail[ure] or refus[al] to hire or to discharge.” Id. at 25. The City states that when general terms are followed by examples, the general words apply only to things like the examples. Id. In addition, the City finds that the Age Discrimination in Employment Act has language almost identical to the “terms, conditions, or privileges of employment” in Title VII and, there, the language is also followed by examples. Id. at 25-26. The City further states that the Supreme Court read that language narrowly to track with the examples. Id.
Moreover, the City supports the Eighth Circuit’s standard of “materially significant disadvantage.” Id. at 24. The City asserts that Title VII includes several subsections, one of which makes it illegal to create employee classifications in such a way that opportunity is distributed in a way that is discriminatory. Id. at 27. The City argues that that subsection does not need the phrase “discriminate against” because the language of the subsection implies it. Id. at 28. The City argues that since the subsection at issue does include the phrase “discriminate against,” a materially significant disadvantage is necessary. Id. at 29-31.
HISTORICAL AND STATUTORY CONTEXT
Muldrow contends that, when Title VII was enacted, Congress made an intentional choice not to limit its scope to differential treatment that results in a significant disadvantage but rather to borrow the sweeping language from the National Labor Relations Act (NLRA). Brief for Petitioner at 20. According to Muldrow, the NLRA forbids “discrimination in regard to . . . any term or condition of employment” on the basis of union membership. Id. Muldrow emphasizes that courts have interpreted the NLRA language, as well as the corresponding requirement that collective bargaining occurs over “terms and conditions” of employment, to mean a wide range of activities, “even those changes that are comparatively slight.” Id. at 20-21. According to Muldrow, the Supreme Court previously held that, by analogy to the NLRA, Title VII should cover “the benefits . . . that form ‘an aspect of’” the employer-employee relationship. Id. at 21. Thus, Muldrow argues that, by analogy to the NLRA, a job transfer is “an aspect of the employer-employee relationship” and should qualify as discrimination under Title VII. Id.
Muldrow further contends that Congress enacted Title VII to ensure that the workplace was completely free of discrimination. Id. at 21. Muldrow argues that, to achieve that goal, Congress intended for Title VII to have expansive reach and that indeed some Senators opposed Title VII explicitly because of its broad reach. Id. at 22-23. Muldrow argues that the Eighth Circuit rule conflicts with this original intent of the Congress. Id. at 42. Furthermore, Muldrow argues that a 1991 amendment to Title VII reaffirms that “terms, conditions, and privileges” of employment covers a wide range of workplace practices and does not require a material disadvantage, since Congress added the words “terms, conditions, and privileges” in response to a Supreme Court decision holding that the previous wording of Title VII was relatively narrow. Id. at 23-24. Additionally, Muldrow contends that the Equal Opportunity Employment Commission (EEOC) provides guidance including job assignments in “terms, conditions, and privileges” of employment. Id. at 24-25.
The City responds that Title VII applies directly to state and local governments, and that Congress did not intend to invite federal suits over every job transfer. Brief for Respondent at 31. The City argues that Congress did not intend to diminish management prerogatives, or turn courts into Human Resources departments, but merely to prevent direct harm. Id. at 32-34.
The City further argues that Congress never intended that all job transfers be considered potentially discriminatory behavior included under Title VII. Id. at 34. Analogously, the City states that reassigning a law associate to a new case clearly is not adverse action of the sort Congress intended to address. Id. at 35. The City of St. Louis argues that whether discrimination occurred should not be based on the opinions of an employee regarding a change in their job. Id. at 38.
DISCRIMINATION IN THE WORKPLACE
The National Employment Lawyers Association (“NELA”), in support of Muldrow, argues that Title VII’s objective to eliminate segregation and end employer discrimination against people of color is inconsistent with the Eighth Circuit’s "significant disadvantage" standard. See Brief of Amici Curiae NELA et al., in Support of Petitioners at 5-14. NELA argues that requiring the showing of significant disadvantage would be akin to reinstating the discredited "separate but equal" doctrine, as workplace discrimination inherently inflicts serious dignitary harms, regardless of tangible harm. Id. at 9-11. Furthermore, NELA claims that the adoption of the significant disadvantage standard could exacerbate income inequality and workplace segregation for women, as it may enable supervisors to channel them into “less dangerous” positions or roles with lower upward mobility, such as administration or human resources. Id. at 11-14.
In contrast, the State of Arkansas and fifteen other states (“Arkansas”), in support of the City of St. Louis (“the City”) assert that Title VII prohibits discrimination "against" an individual and thus implies a need for demonstrable harm. See Brief of Amici Curiae Arkansas et al., in Support of Respondents at 4-8. Arkansas contends that Muldrow’s interpretation of Title VII fails to recognize that the term 'against' connotes a negative effect, and maintains that under Title VII, 'against' is satisfied only by disparate treatment resulting in injury. Id. Arkansas further argues that, under Muldrow’s view, any transfer could be deemed discriminatory, even those that benefit an employee's situation. Id. Arkansas contends that using petitioner’s arguments would clash with the McDonnell Douglas framework, a legal standard that requires plaintiffs to first establish a prima facie case of discrimination before the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for their actions. Id. Arkansas argues that the McDonnell Douglas framework inherently assumes discriminatory intent on the part of the employer without requiring an explanation, consequently shifting a heavy burden onto employers to disprove such intent. Id. at 8-13. Arkansas concludes that Muldrow's approach would create an unjustifiable risk that employers may be liable for non-discriminatory choices in lateral transfers. Id.
ACTIONABLE EMPLOYMENT DECISIONS AND POTENTIAL LAWSUITS
Professors Suja A. Thomas and Amy J. Wildermuth (“Thomas and Wildermuth”), in support of Muldrow, contend that Title VII’s language is unambiguous and covers a wide range of disparate treatment due to a protected trait including transfers and the revocation of privileges. See Brief of Amici Curiae Thomas and Wildermuth in Support of Petitioners at 3-8. Thomas and Wildermuth argue that Title VII already includes exceptions for discriminatory employment decisions based on factors like bona fide occupational qualifications, religious institution preferences, national security interests, seniority and merit systems, and certain tests. Id. at 17-20. Thomas and Wildermuth assert that Title VII forbids any transfer based on a protected trait, regardless of the level of disadvantage, and all forms of discrimination are actionable, and determine that petitioner's stance does not alter the scope of potential litigation. Id. at 18.
The Society for Human Resource Management (“SHRM”), in support of the City, argues that not all personnel actions, like determining work schedules or transfers, materially harm employees or warrant legal action. See Brief of Amici Curiae SHRM in support of respondents at 4-7. SHRM contends that decisions such as hiring or compensation would justify liability under Muldrow’s reading of Title VII, but minor decisions that conflict with employees' subjective preferences shouldn't lead to lawsuits. Id. SHRM contend that lowering the threshold for lawsuits under Title VII could overburden courts and hamper the ability of management and human resources teams to make operational decisions, thereby disrupting the balance in handling workplace issues and personnel actions. Id.
The Legal Aid Society, in support of Muldrow, argues that courts often dismiss claims where employees allege discrimination in job training or career advancement opportunities based on race, gender, religion, or other discriminatory bases. See Brief of Amici Curiae The Legal Aid Society et al., in Support of Petitioner at 22-27. The Legal Aid Society contends that despite the clear link between training, career progression, and pay, courts have deemed such issues as non-critical employment decisions. Id. The Legal Aid Society notes that in cases like Shackelford v. Deloitte Touche, a manager's discriminatory actions, including denying training and lying about job opportunities, were overlooked by the court. Id. The Legal Aid Society concludes that the City’s approach can leave employees without recourse, even in instances of clear discriminatory practices that slow down or derail their career. Id.
The Chamber of Commerce of the United States of America (“the Chamber of Commerce”), in support of the City, counters that adopting Muldrow's interpretation of Title VII could hinder employers' ability to efficiently operate their businesses. See Brief of Amici Curiae the Chamber of Commerce et al., in Support of Respondent at 20-25. The Chamber of Commerce contends that employers need discretion to transfer employees based on business needs, without facing liability for every decision that doesn't align with an employee's subjective preferences. Id. The Chamber of Commerce argues that the current labor shortage exacerbates this need for flexibility. Id. The Chamber of Commerce contends that, with millions of job openings unfilled due to factors like early retirements from COVID-19, lower immigration, and changing work preferences, industries like government, hospitality, restaurants, and retail need to temporarily assign employees to different tasks or locations to meet business demands. Id. The Chamber of Commerce concludes that petitioner’s interpretation of Title VII could limit this necessary operational flexibility during a time of widespread labor shortages. Id.
- Patrick Dorian, SCOTUS to Hear Female St. Louis Police Sergeant’s Job Bias Case, Bloomberg (June 30, 2023).
- Delaney Busch , When is a job transfer, not a job transfer? SCOTUS set to determine the scope of Title VII prohibitions on employment discrimination, JDSUPRA (October 13, 2023).
- Rebekah Yeager-Malkin, US Supreme Court to consider whether employees can sue for bias-motivated workplace transfers, Jurist (July 2, 2023).