The Supreme Court Lowers the Bar for Harm Under Title VII

Quick work here by Greg Paal, one of our sharp eyed lawyers:

When is a negative change to an employee’s working conditions enough to justify a discrimination lawsuit? On Wednesday, April 17, 2024, the US Supreme Court declared in a unanimous decision that just about anything goes, lowering the bar for a Title VII claim from requiring the employee to show “substantial harm” to showing any harm at all.  The road to the courthouse looks like it got a lot wider for employees claiming discrimination.

Muldrow v. St Louis is an employee transfer case–something that happens frequently in workplaces. Muldrow was transferred out of a plain clothes police division, where she had worked for years. While her rank, pay and benefits remained the same, she lost the use of an unmarked vehicle, had to patrol streets, wear a uniform again and work weekends. The question before the Supreme Court was whether the changes to her job were actionable under the federal law. There has been a split in the lower courts nationwide. In fact, the lower courts here ruled against Muldrow, finding that the transfer did not rise to the level of “material” changes that would merit a claim based on gender under Title VII. The Supreme Court disagreed, unmoved by the potential for more lawsuits, by eliminating the need for substantial harm.

The best guidepost for this decision comes from Justice Kavanaugh’s concurrence: if the change to the terms and conditions of the employee’s employment was based on a discriminatory animus, then that is itself harmful even if the change to the employee’s job is otherwise insignificant.

(Worth noting here: the Court did not lower the bar for retaliation claims – employees claiming they were retaliated against still have to demonstrate that they suffered substantial harm that was sufficient to dissuade them from their protected activity.)

Will Muldrow throw open the doors to federal lawsuits for any job changes? Time will tell. This case is a good reminder to avoid any appearance of discrimination in employment decisions. If you are in doubt, we can help.

When difficult questions arise–and they always do–you can call or email one of our seasoned employment attorneys for a fixed monthly fee under our Employment Counsel On Call Triage Service. Then you can get back to work. Contact us.