The U.S. Supreme Court has agreed to hear an appeal from the Eighth Circuit entitled Muldrow v. City of St. Louis. The issue in Muldrow involves whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in job transfer decisions, absent evidence that the transfer caused the plaintiff a material disadvantage. As a result, the high Court will consider whether Title VII applies to all terms, conditions, and privileges of employment or whether it is limited to employment decisions that result in materially significant disadvantages to employees.
Muldrow was a sergeant with the St. Louis Police Department, where she worked in the intelligence unit, oversaw various other specialized units, and served as a task force officer for the FBI’s human trafficking unit. She worked a 9-5 schedule, wore plain clothes, had access to an unmarked FBI vehicle, and could earn up to $17,500 in overtime pay from the FBI.
In June 2017, the city transferred Muldrow to the Fifth District, where she supervised police officers on patrol, reviewed and approved arrests, and responded to police calls. She no longer could earn FBI overtime pay, although she had other opportunities to earn overtime pay. She had to wear a police uniform and work a rotating schedule, including weekends. She unsuccessfully applied to transfer to the Second District twice and to an internal affairs position. While her last request was pending, she was transferred to the intelligence unit, where her FBI privileges were reinstated.
Muldrow filed a discrimination charge against the city with the Missouri Commission on Human Rights and sued in state court, alleging gender discrimination and retaliation for the city’s failure to approve her transfer requests 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 agreed, concluding that retaliation must be materially adverse and produce injury or harm to constitute prohibited discrimination. The appellate court ruled that the denial of Muldrow’s transfer requests did not rise to the level of significant harm necessary to find discrimination. The court further noted that although denial of a transfer could constitute an adverse employment action, it would have to result in a change in pay, working conditions, rank, or other similar factor to qualify as discriminatory under Title VII.
Employers also should be mindful of the distinction between mandatory and voluntary transfers and clearly document how any employee transfers occur. If an employee voluntarily transfers job positions, then the employee cannot prove discrimination. If the transfer is mandatory, then allegations of discrimination could arise. A job transfer is mandatory if the employee’s only alternative to the transfer is to leave the place of employment altogether. Similarly, an employer telling an employee that the transfer is a condition of their employment is also a mandatory transfer.
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