Employees challenging an adverse job action under Title VII no longer must meet the heightened standard that was previously required by some federal courts. That is thanks to the United States Supreme Court’s opinion in Muldrow v. City of St. Louis, Missouri, et al., No. 22-193, slip op. (Apr. 17, 2024).

In Muldrow, a St. Louis Police sergeant sued the City under Title VIIof the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, for sex discrimination after she was transferred from the Police Department’s Intelligence Division to a job supervising neighborhood patrol officers. In 2017, the Captain of theIntelligence Division requested that Muldrow be replaced with a male officer, and the Department approved the transfer request against Muldrow’s wishes.

In her old intelligence role, Muldrow investigated public corruption and human trafficking cases. She was also deputized as a Task Force Officer with the FBI, which came with its own set of perks, including an unmarked take-home car. After the transfer, Muldrow no longer worked on federal investigations and instead did more administrative work. Id. She lost her FBI credentials and the car that came with it. Her patrol work also meant she had to work weekends and had a less predictable schedule than she did in theIntelligence Division. However, her rank and pay remained the same.

Muldrow sued, alleging the City discriminated against her based on her sex in violation of Title VII. TheUnited States District Court for the Eastern District of Missouri granted summary judgment in favor of the City. The District Court followed the precedent set by the Eighth Circuit Court of Appeals, which required employees to show their transfer resulted in a “significant” change in working conditions producing a “material employment disadvantage.” The court reasoned Muldrow had not shown that she suffered a significant alteration to her work responsibilities such that she could prove the transfer was an adverse employment action. The Eighth Circuit affirmed.

In an opinion penned by Justice Elena Kagan, the Supreme Court reversed, based primarily on the fact that the plain language of Title VII’s anti-discrimination provision does not impose a heightened degree of harm:

“Discriminate against” means treat worse, here based on sex. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand“significance” is to add words—and significant words, as it were—to the statuteCongress enacted. 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.

‍Muldrow, slip op., at 6. The Court distinguished its own prior decision in Burlington N. & S. F. R.Co. v. White, 548 U.S. 53 (2006), explaining that Burlington’s requirement of a heightened showing of a “materially adverse” action causing “significant” harm applied to Title VII’s anti-retaliation provision, not its anti-discrimination provision.

The Court in Muldrow will require a different analysis of Title VII claims incases arising in the Second, Fourth, Seventh, Eighth, Tenth, and EleventhCircuits, all of which previously required that the challenged job action be“significant” or “materially adverse.” The same is true of cases arising in the Sixth Circuit, including Tennessee (along with Kentucky, Ohio, and Michigan),which previously required that a plaintiff challenging a transfer under TitleVII prove that the action was “materially” adverse. E.g., Redlin v. Grosse PointePub. Sch. Sys., 921 F.3d 599, 607-8 (6th Cir. 2019); Spees v. James Marine, Inc., 617 F.3d 380, 392 (6th Cir. 2010).

Of course, whether an employment action violates Title VII, or any other federal or state law, often involves a fact-intensive analysis on a case-by-case basis. Thompson Burton’s Employment Law practice group routinely counsels employers on compliance with Title VII and other laws and regulations, as well as to provide litigation services when needed.

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