U.S. Supreme Court Holds that Job Transfer Can Be Discriminatory, Even if it Does Not Affect Pay or Benefits

April 17, 2024

By: Colin A. Walker

On April 17, 2024, the United States Supreme Court issued an opinion holding that a mandatory job transfer can be discriminatory under Title VII of the Civil Rights Act of 1964, the primary federal employment anti-discrimination law, even if the transfer does not reduce pay or benefits. 
In Muldrow v. City of St. Louis, the plaintiff, a sergeant with the St. Louis police department and a woman, was transferred from a plain clothes position in the Specialized Intelligence Division to a uniformed supervisor position. She was replaced by a man. The plaintiff alleged that the transfer discriminated against her on the basis of her sex, because the former position carried certain “perks,” including use of a police vehicle, working with high-level management on intelligence issues (which was more “prestigious”), and a more regular Monday through Friday, 9 to 5, schedule. In the new position, she supervised the day-to-day activities of neighborhood patrol officers, which required her to work irregular schedules often on the weekends. However, her pay and benefits remained the same. 
Rejecting lower court opinions that required a “significant” harm, the Supreme Court held that, to prevail on a discrimination claim, the employee must prove that the transfer brought about “some harm with respect to an identifiable term or condition of employment, but that harm need not be significant, serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” The Court explained that Title VII prohibits discrimination in the “compensation, terms, conditions, or privileges of employment” and that the “terms [or] conditions” phrase is not used “in the narrow contractual sense”; it covers more than the “economic or tangible.” “Discriminate against” means “treat worse.” Nothing in Title VII requires that the harm be significant or material, held the Court. 
The Court rejected the employer’s analogy to a 2006 case, Burlington Northern v. White, which held that, for Title VII retaliation claims, the plaintiff had to prove that the retaliatory action was “materially adverse,” meaning that it caused “significant harm.” The Court explained that retaliation has different standards. Retaliation seeks to prevent employer action which could “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Such is not the case in a discrimination case, where the Court held “the transfer must have left her worse off, but need not have left her significantly so.”
While the opinion makes clear that the employee must show some harm and that that harm needs not be significant, it does not explain what is required that the employee has been harmed or made “worse off.” This leaves the door open to very minor harms, such as changes of schedule (for example weekends or night shifts), less “prestigious” duties (here, managing patrol officers instead of working with high-level management on intelligence issues), undesirable working conditions (for example window offices versus and interior offices), being sufficient to support a discrimination claim. It is clear that the employee does not need to show that the transfer resulted in lower pay or benefits.
Discrimination litigation following this decision will have to focus on the details — even minute details — of the old position and the new position to which the plaintiff was transferred. This is likely to significantly increase the time and costs of litigation, make dispositive motions more difficult for employers to win, and the outcomes less certain.