May 28th, 2024

Court Replaces “Significant Harm” Test with “Some-Harm” Standard

In Muldrow v. City of St. Louis, the U.S. Supreme Court rejected lower court precedent requiring a plaintiff to show materially significant harm to prevail on a Title VII claim. This claim arose when police Sergeant Muldrow alleged, because she was a woman, she was transferred from her job as a plain clothes officer in the department’s specialized intelligence division to a uniformed position supervising day-to-day activities of neighborhood patrol officers. The District Court granted summary judgment noting Sargeant Muldrow sustained no diminution in title, salary, or benefits, and could not show any other materially significant harm due to the transfer. This ruling was affirmed by the Circuit Court.

Justice Kagen’s opinion, in which five of the Justices joined, determined “[t]o make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment,” but nothing in Title VII’s provisions “establish an elevated threshold of harm.”

Justice Kegan found Sargeant Muldrow’s allegations, if properly preserved and supported, to meet the showing of some-harm “with room to spare.”

She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take home car. If those allegations are proved, she was left worse off several times over.

Additionally, Justice Kegan cited three other transfer cases which previously had been dismissed under the “significant harm” test and opined that they would pass the Court’s newly articulated “some-harm” test. This included a school principal “forced into a non-school based administrative role supervising fewer employees.” Cole v. Wake Cty. Bd. of Educ., 834 Fed.Appx. 820 (CA4 2021).

Court Reaffirms Materially Adverse Standard in Retaliation Claims

While Justice Keagan’s opinion sets the “some harm” standard for a Title VII claim, she reaffirmed the need for a showing of significant harm in a retaliation claim. In Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the Court ruled that liability under the anti-retaliation provision of Title VII “applies only when the retaliatory action is ‘materially adverse,’ meaning it causes ‘significant’ harm.”

Justice Keagan distinguished that holding stating, “White adopted the standard for reasons peculiar to the retaliation context. The test was meant to capture those (and only those) employer actions serious enough to ‘dissuade a reasonable worker from making or supporting a charge of discrimination.’” She further determined, “[i]f an action causes less serious harm, the Court reasoned, it will not deter Title VII enforcement; and if it will not deter Title VII enforcement, it falls outside the purposes of the ban on retaliation.”

Conversely, Justice Keagen found, “no such (frankly extra-textual) reasoning is applicable to the discrimination bar. Whether an action causes significant enough harm to deter any employee conduct is there beside the point.”

Key Takeaways

(1) For Title VII claims, the plaintiff must show some-harm, but that harm need not rise to a materially adverse change in the terms and conditions of employment.

(2) An employee or job applicant asserting a retaliation claim under Title VII must show a a materially adverse employment action.

(3) Employers, when transferring employees (especially when similar transfers are uncommon), should be able to articulate and provide a reasonable record of a legitimate, non-discriminatory reason for the transfer.


Michael P. Leone

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