Is teaching 7th grade harder than teaching 3rd grade? Is a transfer from a high school principal’s position to the central office a “materially adverse” change? What about a school security guard’s move from a high school to a middle school?
Those are some of the questions lower courts have faced in the context of employment discrimination claims under Title VII of the Civil Rights Act of 1964. In each of those cases, the courts ruled that the job transfer did not result in a significant disadvantage, and thus the plaintiff’s case ended at an early stage, before he or she had a chance to prove the alleged discriminatory conduct.
Now, however, the U.S. Supreme Court has taken up the question of whether a job transfer must result in a significant disadvantage before the complaining employee may move on to proving their employment discrimination allegations. After nearly two hours of arguments on Wednesday, the justices seemed to lean toward a ruling in favor of the employee.
In Muldrow v. City of St. Louis, the justices are considering the case of a St. Louis police sergeant who alleged sex discrimination in her transfer out of the prestigious intelligence division to a more routine patrol district, even though the change was not considered a demotion and did not result in a drop in pay or other benefits.
Although the school cases did not come up during oral arguments, the court’s decision in the case will have broad ramifications in public education. Education administrators worry that a ruling that would remove the requirement to show harm would not only hamper their need to sometimes reassign staff to address students’ needs, but would also bury them in litigation.
“Collectively, public school districts are the largest employer in the country,” says a friend-of-the-court brief filed by the National School Boards Association, AASA, the School Superintendents’ Association, and the National Association of School Business Officials International. “Educational administrators, particularly in large urban school districts, regularly must make a wide range of teacher and support staff assignments and other personnel management decisions to meet the needs of constantly changing student populations.”
The groups join St. Louis in asking the court to uphold a standard that prevails in a majority of federal appeals circuits that have addressed the issue—that a job transfer must result in material harm to the employee to be the basis for a Title VII discrimination claim.
“Eliminating the material, objective harm requirement would vastly expand the scope of transfer and other employment decisions that might be subject to litigation, and the number of claims that survive early adjudication,” the school groups’ brief says. “The result would be to significantly increase litigation burdens on already resource-strapped school districts.”
The illegal discrimination itself is the harm, employee’s lawyer argues
The St. Louis police case involves Jatonya Muldrow, who worked nine years in the intelligence division and had once led the gun crimes unit. In 2017, a new, male supervisor transferred her to a local police district, where she supervised routine patrol and investigative matters and once again had to wear a uniform instead of plainclothes.
The new intelligence division leader allegedly referred to the work Muldrow had been involved in as “very dangerous,” and he replaced her with a male officer and transferred two other women out of the division. The supervisor also referred to her as “Mrs.” rather than “Sergeant,” as he addressed men of that rank.
Muldrow sued for sex discrimination under Title VII, but lost in both a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis. The appellate court held last year that Muldrow’s transfer was not an “adverse employment action” under Title VII.
The 8th Circuit court observed that Muldrew’s transfer “did not result in a diminution to her title, salary, or benefits” or “a significant change in working conditions or responsibilities.” She simply expressed “a mere preference for one position over the other,” the court said.
Brian Wolfman, a Georgetown University Law Center professor representing Muldrow before the high court, said the 8th Circuit was mistaken.
“If an employer transfers an employee because of a protected characteristic, that’s discrimination, and it’s prohibited by Title VII,” he said. “The worse treatment here is the discrimination itself.”
Muldrow also had the support of President Joe Biden’s administration.
“By definition, if you are transferring somebody, if you’re changing their office location, if you are, you know, altering their shift or anything like that on the basis of a protected characteristic, that is inherently harmful,” said Aimee W. Brown, an assistant to the U.S. solicitor general.
Robert M. Loeb, the lawyer representing the city of St. Louis, said that to be the basis for a Title VII claim, a transfer decision “needs to be something more than mere personal preferences and subjective sensitivities of the particular employee.”
He said a categorical standard covering any transfer would mean “the federal courts would become the super-personnel department not just for all private employers but for state governments and for local governments.”
School groups ask: Would a short-term assignment count as a transfer?
The school groups note in their brief that public education “has been the backdrop for a significant volume of the case law applying the material, objective harm standard.”
They point to several decisions involving lateral transfers of school personnel where courts have ruled for school districts based on a lack of harm to the transferred educator or staff member.
In a 2012 decision, the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled that a Chicago Public Schools teacher did not suffer harm by being assigned to a 7th grade class instead of her preference to teach 3rd grade. The teacher, who was suing under Title VII for alleged national origin discrimination, claimed she was denied a position for which she was best suited and put in a different and more difficult job.
The 7th Circuit said the Chicago teacher did not present enough evidence to show material harm in her new assignment.
“That the 7th-grade class she was assigned to may have been more unruly than 3rd-grade students does not make [the teacher’s] assignment to the 7th grade a materially adverse employment action,” the appeals court said.
The school groups also argue that a rule in which lateral transfers are by definition covered by Title VII would be difficult to apply in education.
“Does a short-term, temporary assignment to cover a class in another school count as a ‘transfer’?” the school groups’ brief says. “Does assigning a teacher to a different classroom in the same building, or asking her to teach a class online, qualify as a change in ‘location’?” … None of these questions have clear answers.”
The St. Louis police sergeant’s lawyers cited several school transfer cases in their briefing, calling some applications of the material harm standard “egregious.”
They cite, among other cases, a 2016 decision by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, that a Black school security officer transferred from a high school to a middle school did not suffer an adverse job action, despite his claims that the middle school position was less prestigious and did not offer the possibility of overtime pay. The officer’s underlying claim of race discrimination involved allegations that a New Jersey school district moved white security officers inside during winter while making Black guards work outside.
Some other courts have also ruled that certain job transfers in K-12 education were adverse. A federal appeals court ruled in 1980 that an art teacher’s transfer from her longtime position at a junior high school to an elementary school interfered with a condition of employment.
In 2000, another federal appeals court held that a female high school principal who was transferred to a central office position may have suffered “a loss of prestige and responsibility” and allowed her Title VII suit to proceed. (To show how split the federal courts are over these questions, another federal appeals court ruled in 2021 that a middle school principal’s transfer to the central office was not a loss of prestige.)
Muldrow’s lawyers argued that the text of Title VII does not call for federal judges “to answer value-laden questions about which jobs are better than others.”
Justices debate the impact of discrimination in the workplace
During oral arguments, Justice Samuel A. Alito Jr. appeared most sympathetic to a standard requiring some tangible harm resulting from a transfer in a Title VII case. He worried about hearing from federal district judges who might say they could not dismiss “trivial cases” without going through lengthy discovery and other legal proceedings.
Alito wondered whether there should be “some sort of threshold that has to be cleared before the matter gets into court.”
But several justices appeared to lean towards Muldrow’s arguments.
“We’ve recognized over and over again that discrimination itself can profoundly injure people—just the fact itself that you’re being treated differently from somebody else based on your race, based on your sex, et cetera,” Justice Elena Kagan told Loeb, the city’s lawyer.
Justice Brett M. Kavanaugh said, “Not everything in the workplace will relate to a term, condition, or privilege of employment, but transfers, I think, clearly would.”
Justice Neil M. Gorsuch, who wrote the court’s 2020 opinion in Bostock v. Clayton County, Ga., which interpreted Title VII as covering discrimination based on sexual orientation and gender identity, told Loeb that he agreed some of the court’s precedents hold that “discriminate” means treating one employee worse than another.
“Got it,” Gorsuch said. “But I think we’ve also kind of indicated in our cases that when you treat someone worse than another person because of race or sex, that’s kind of the end of it, and there isn’t a further inquiry into how badly you treated somebody worse. A minor [case of] treating [someone] worse on the basis of sex or race is something Congress in 1964—in a very short and sweet statute, 28 pages long but profound—said that the law will no longer tolerate.”
A decision in the case is expected by next June.