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Big Win For Employees Proving Discrimination:The Job Transfer Equals “Some Harm”

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By Mark Carey

Employers have notoriously used the “job transfer” to a lateral position or assigned an employee to “project work” only to lay them off within a year.  I tell clients this is the proverbial writing on the wall for them “get the heck out, you are not wanted here any longer”.  If the employee becomes frustrated enough, they quit and find other employment. That is the point of this employer’s default management strategy. The benefit to the employer is simple, the employee resigns and cannot collect unemployment saving the employer money.  Employers also use transfers to discriminate based on sex, among other protected classifications. For example, transferring a female police officer in a high level position to a lesser desirable position in favor of a male officer.  For years, employees have had to prove some form of “significant” adverse harm when proving discrimination cases under federal employment law statutes. Employees were routinely unable to successfully convince courts that a transfer was a material adverse action to support a discrimination claim.  Thanks to a new Supreme Court decision, employees were given a new tool to combat discrimination of any form.

On April 17, 2024, the Supreme Court issued a unanimous decision in the case of Muldrow v. City of St. Louis, Missouri, 601 U.S. __2024. A female police officer named Jatonya Clayborn brought a discrimination case against the City, alleging sex discrimination in violation of Title VII of the 1964 Civil Rights Act after she was transferred.  The lower courts denied her relief, but the Supreme Court fashioned a newer lower standard of proof making is far easier for employees to combat discrimination of any form just by showing factual proof that “some harm” occurred in the terms, conditions and privileges of their employment substantially motivated by her sex. Presumably, other forms of adverse employment actions will also qualify under this same lower standard of proof.

The Supreme Court had to resolve a dispute among the lower courts that imposed a much higher burden of proof on employees claiming discrimination. Previously, employees had to show a “significant harm” when they received a job transfer of any kind that did not result in loss of salary or bonus compensation.  This was an impossible burden to many employees and their employment lawyers.  The basis of the Court’s rationale to rule in favor of Officer Muldrow was the phrase “significant harm” appeared nowhere in the text of Title VII, borrowing a tactic from the conservative textualist playbook.  The opinion was written by Justice Kagan, who was appointed by President Obama. 

Justice Kagan wrote, “Sergeant Jatonya Clayborn Muldrow maintains that her employer, the St. Louis Police Department, transferred her from one job to another because she is a woman.  She sued the City of St. Louis under Title VII, alleging that she had suffered sex discrimination with respect to the ‘terms [or] conditions’ of her employment. The courts below rejected the claim on the ground that the transfer did not cause Muldrow a ‘significant employment disadvantage. Other courts have used similar standards in addressing Title VII suits arising from job transfers.  Today, we disapprove that approach. Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test. Title VII’s text nowhere establishes that high bar.” (emphasis added).

Justice Kagan continued, “Muldrow need show only some injury respecting her employment terms and conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division [deputized as a Task Force Officer with the FBI] giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought (and Justice Thomas echoes), that her rank and pay remained the same, or that she still could advance to other jobs. Title VII prohibits making a transfer, based on sex, with the consequences Muldrow described.”  (emphasis added).

This decision, in my opinion, is a huge blow to employers. The job transfer or project work tactic is ubiquitous in the workplace, which I have identified as a default management strategy designed to force employees to quit.  Now under the lessor burdensome standard, the employee only has to factually demonstrate “some harm” caused by the transfer or project work assignment.  Yes, this will open or I should say “unlock” the previously dammed up number of cases as the Supreme Court’s concurring opinion noted.  Let the flood begin in earnest!

Better yet, employees must now argue they experienced “some harm” in any employment discrimination case, not just job transfer or project work cases.  This new decision helps tip the scales back in favor of employees who challenge employers claiming discrimination based on sex, age, sexual orientation, race, national origin, disability, religion and retaliation.  That is why the decision is such a big deal for employees and it will directly help employees argue for better treatment, severance packages and prove unlawful discrimination in court.

If you would like to learn more about this issue or speak with an employment attorney, please contact Carey & Associates, P.C. at or call 203-255-4150.