In a case followed closely in the education community, the U.S. Supreme Court on Wednesday ruled that employees challenging a transfer under the main federal job-discrimination law must show that change causes some harm in term or condition of employment but that the harm need not be “significant.”
The ruling was largely a victory for employees and civil rights groups, who had urged the court to reject a standard requiring a significant disadvantage in the transferred employee’s new job assignment to be the basis for a discrimination complaint under Title VII of the Civil Rights Act of 1964.
It was a defeat for employers and their advocates, including several school groups, who warned that removing the significance requirement could impinge on the many transfer decisions school administrators must make in deploying a typically large workforce.
“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment,” Justice Elena Kagan wrote for the court in Muldrow v. City of St. Louis. “What the transferee does not have to show, according to the relevant text, is that the harm incurred was ‘significant.’ Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”
A police sergeant’s case has parallel examples in education
Five other members of the court signed Kagan’s opinion: Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Neil M. Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson. Justices Clarence Thomas, Samuel A. Alito Jr., and Brett M. Kavanaugh all concurred with the outcome, but Thomas and Alito wrote opinions that almost read like dissents, and Kavanaugh wrote a separate opinion that would have gone further than the majority in support of employees.
The decision revived the Title VII sex-discrimination suit of St. Louis police Sgt. 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.
The U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled that Muldrow’s transfer was not an adverse employment action because it “did not result in a diminution to her title, salary, or benefits” or “a significant change in working conditions or responsibilities.” The court was one of several federal appeals courts to apply some form of the significance standard in job transfer cases.
Kagan cited some of those decisions, including a 1998 ruling by the U.S. Court of Appeals for the 10th Circuit, in Denver, which adopted a significant standard in the case of a teacher who alleged sex discrimination in her transfer to a less desirable (to her) school.
“To demand ‘significance’ is to add words—and significant words, as it were—to the statute Congress enacted,” Kagan said. “It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written.”
And such a standard can make a real difference, she said, as “many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.)”
She cited several examples from cases of employees whose bias claims about their transfers were rejected under a significance standard. They included, Kagan said, “a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not ‘significant.’”
That referred to Cole v. Wake County Board of Education, a 2021 decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that ruled against a Black middle school principal who challenged her transfer to a central-office position as being motivated by racial bias. The appellate court affirmed a district judge’s ruling that despite the principal’s view of the transfer as a demotion that decreased her chances for advancement, other principals had been moved to central-office positions without any loss of prestige.
Kagan said in a footnote that the principal’s case she cited was an example of a claim that failed under the significance test used by the ruling appeals court but would “succeed” under the Supreme Court’s new standard.
In fact, school employment cases came up frequently in the briefs filed in the case, including ones asking whether being transferred to teach 7th grade instead of 3rd grade would be a materially adverse change (an appeals court said it wasn’t) or whether a school security guard’s movement from a high school to a middle school, with more outdoor work and less opportunity for overtime, met the significant transfer test (another appeals court said it did not).
“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,” said a friend-of-the-court brief filed in support of the significance standard by the National School Boards Association; AASA, the School Superintendents’ Association; and the National Association of School Business Officials International.
Francisco M. Negrón Jr., the founder and CEO of K12 Counsel, an education law advocacy firm in Washington, said the decision will be worrisome for school districts.
“This will make it more difficult for districts to be nimble” in their deployment of teachers, administrators, bus drivers, and other personnel, he said.
“The majority was quite expansive in its opinion,” said Negrón, who was the longtime general counsel of NSBA until late last year and had helped write the school groups’ brief. “Kagan talks not just about job locations and schedules but also perks. School districts are going to have to be more careful about what constitutes terms and conditions of employment.”
They may need to make clear to new hires that they work for the district and are subject to redeployment based on the district’s needs. But even then, he added, “I think there are more questions this case raises than it answers, and those are going to be the subject of future litigation.”
Ming-Qi Chu, the deputy director of the American Civil Liberties Union’s Women’s Rights Project, said the decision “is an enormous win for workers.”
The “heightened standard contradicts the statute’s text and undermines Congress’ plan of eliminating discrimination in employment in passing Title VII,” she said.
One justice calls majority opinion ‘unhelpful’
Muldrow’s case was revived but sent back to lower courts for consideration of certain outstanding questions about some of the evidence in her case. All members of the court agreed with that outcome.
Thomas, in his opinion, said he believed the proper standard was not “some harm” but that an employee challenging a transfer must show harm that is “more than trifling.”
“In other words, a plaintiff must have suffered an actual disadvantage as compared to minor changes,” he said.
Thomas said Muldrow “failed to prove that there was any nontrifling change in her job’s prestige” and that the 8th Circuit was probably correct to reject her claim, but he grudgingly went along with the judgment that will require the lower courts to give a fresh look at some aspects of her case.
Alito was more critical of Kagan’s opinion, even as he also joined the outcome.
“I do not join the court’s unhelpful opinion,” Alito said. “For decades, dozens of lower court judges, with a wealth of experience handling Title VII cases, have held that not every unwanted employment experience affects an employee’s ‘terms’ or ‘conditions’ of employment.”
As to Kagan’s guidance that plaintiffs must show some harm but that it not be significant, “I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.”
“We do not typically say that we were harmed or injured by every unwanted experience,” he added. “The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years.”
Kavanaugh tacked in the opposite direction, saying in his opinion that he did not think that “some harm” was necessary for a successful claim if the transfer was made on the basis of the characteristics covered by Title VII—the employee’s race, color, religion, sex, or national origin.
He said, “Suppose that an employer says to an employee in the Columbus (Ohio) office: ‘We are transferring you to the Cincinnati office because you are black. But your compensation will not change.’ Does that violate Title VII? Of course it does.”
The discrimination is the harm, Kavanaugh said, and a transfer is by definition a change in terms or conditions of employment. Still, he said, the new “some harm” requirement is a low bar for plaintiffs to meet.
Anyone who has been transferred based on a characteristic covered by Title VII, Kavanaugh said, “should easily be able to show some additional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”
