If you transfer employees with no loss of pay or status, can they sue you under Title VII? Right now, it depends on where you live and what your local federal circuit has ruled. That could change.
The Supreme Court will soon decide whether Title VII prohibits discrimination in transfer decisions if the transfer decision did not cause a significant disadvantage. In Muldrow v. City of St. Louis, Missouri, the Eighth Circuit Court of Appeals held that Title VII only prohibits adverse employment actions that result in a materially significant disadvantage for the employee. Other appellate courts have held that a forced lateral transfer is an adverse employment action, even if the employee cannot demonstrate any additional harm resulting from the move. The D.C. Circuit and Sixth Circuit have rejected the reasoning of the Eighth Circuit that Title VII requires additional harm above a discriminatory transfer. Though not as explicit, the Ninth Circuit likewise rejects a narrow adverse-employment-action rule. The Third Circuit, however, is more restrictive — minor actions such as lateral transfers are generally insufficient under Title VII. The remaining circuits approach the issue somewhere in between. Also of importance, the Fifth Circuit recently uprooted its restrictive “ultimate employment decision” standard. This circuit split has prompted the Supreme Court to intervene, and its forthcoming decision could clarify what constitutes an adverse employment action under Title VII.
Muldrow’s Job and Transfer
Jatonya Muldrow, who served as a sergeant in the Intelligence Division of the City of St. Louis Police Department, is at the center of this case. In her role, she handled high-profile public corruption cases, oversaw the Gang Unit, and was deputized to work with the local FBI unit. In that position, she enjoyed various benefits, such as wearing plain clothes, working a predictable Monday-to-Friday schedule, having access to an unmarked FBI vehicle, and the opportunity to earn substantial overtime pay (up to $17,500 annually).
In 2017, a new captain assumed command of the Intelligence Division and made personnel changes that included transferring 22 officers (17 of whom were male) to other positions. Muldrow was one of the 22 officers transferred to a new role. In her new position in the Fifth District, her responsibilities focused on administrative tasks and supervising patrol officers and responding to serious crimes like homicides. Her new job required her to work a rotating schedule, including weekends, wear a police uniform, and use a marked police vehicle. Her salary remained unchanged, and while she lost eligibility for the FBI’s annual overtime pay, she had other overtime opportunities.
She immediately began applying for other roles, and after about eight months got back into the Intelligence Division.
The Lawsuit and Appeal
Muldrow filed a Title VII sex discrimination suit claiming her transfer was motivated by new leadership wanting a man in her previous role. She alleged the transfer was an adverse employment action under Title VII because her Fifth District work was more administrative (more akin to entry-level work) and less prestigious than her previous work in the Intelligence Division.
Both the district court and the Eighth Circuit ruled in favor of the police department. They determined that Title VII only bars adverse employment actions that lead to a materially significant disadvantage. In the courts’ view, Muldrow’s transfer did not result in such a disadvantage because her pay and rank remained unchanged, she still held a supervisory role, her duties included investigating important crimes, and her time in the Fifth District did not harm her future career prospects. The Eighth Circuit specifically held that “an employee’s reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action.”
The Supreme Court agreed to hear the appeal from the Eight Circuit.
Supreme Court’s Decision and Effect on Employers
The Supreme Court’s decision could clarify what constitutes an actionable adverse employment action under Title VII. This comes after the Fifth Circuit’s recent decision uprooting decades’ long precedent and holding that employees are not limited to claims only when subjected to “ultimate employment decisions” like hiring, promotions, and firing. The Fifth Circuit, however, did not clarify what actions are and are not actionable adverse employment actions beyond the scheduling policy before it. The Supreme Court is thus in prime position to offer guidance on this issue.
At its core, Muldrow’s case challenges the notion of what workplace actions an employee can fight in court. Thus, the decision could determine the scope of actions that Title VII covers. This could influence how businesses formulate long-term human resources strategies and staffing decisions, emphasizing the need for employers to stay agile, informed, and ready to adapt.
The Supreme Court scheduled oral argument for Muldrow v. City of St. Louis, Missouri on December 6, 2023. We may not get a decision until April or May 2024. In the meantime, cautious employers will review these kinds of transfer and scheduling decisions with an eye to defending them in court.