The U.S. Supreme Court recently heard arguments in Muldrow v. City of St. Louis. The Court’s decision in Muldrow will determine whether an involuntary job transfer can constitute illegal discrimination in some cases. The main inquiry during oral arguments focused on whether tangible harm is necessary to prove discrimination. Examples of tangible harm include less pay, less favorable hours, or a lower rank.
In June 2017, the St. Louis Police Department transferred Muldrow, a sergeant in the intelligence division, to the Fifth District. While in the intelligence division, Muldrow worked a traditional 9 to 5 schedule, wore plain clothes, had access to an unmarked FBI vehicle, and could earn up to $17,500 in annual overtime pay from the FBI. In her position at the Fifth District, she supervised police officers on patrol, wore a uniform, and worked a rotating schedule, including weekends. Although she earned the same salary, she could no longer access the annual FBI overtime pay.
Muldrow sued the city, alleging gender discrimination and retaliation under federal and state law after it denied her requests to transfer from the Fifth District. A federal district court ruled in favor of the city, and the U.S. Court of Appeals for the Eighth Circuit upheld that ruling.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers based on race, color, sex, national origin, or religion. Workers alleging illegal discrimination must show that their employers took some adverse employment action against them that affects the terms, conditions, privileges, or benefits of their employment, such as being fired, suspended, otherwise disciplined, or demoted to a position with lower pay or fewer benefits.
The city of St. Louis argued that Muldrow had to show significant material harm to prove employment discrimination, as measured from the view of an objectively reasonable person. However, Muldrow’s attorney claimed that no showing of tangible harm was necessary, as a showing of disparate treatment was sufficient. In his view, denying equal treatment based on a protected characteristic produces actionable harm.
Justice Kentanji Brown expressed concern about making plaintiffs prove material harm to prove discrimination, stating that any damages award in a discrimination case already requires a showing of material harm. However, Justice Samuel Alito opined that minor workplace differences could lead to discrimination lawsuits without requiring a showing of material harm. Nonetheless, as Justice Brett Kavanaugh pointed out, some differences are social rather than related to the terms and conditions of employment, so they would not be actionable under discrimination laws.
The justices appeared to favor Muldrow’s arguments that proof of tangible harm is not required to maintain a discrimination claim under Title VII. Ultimately, if the Supreme Court rules in favor of Muldrow, more discrimination cases could survive early motions to dismiss and proceed to trial. However, discrimination claims under Title VII still require proof of the employer’s discriminatory intent to succeed.
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