Categories
If you are a bit confused about what it takes to establish a violation of Title VII of the Civil Rights Act of 1964, you have some company. At least for now, it all depends on the type of claim. For instance, to establish actionable harassment, one must show that the harassment was extreme and not merely rude or unpleasant in order to impact an employee’s terms and conditions of employment. But, to establish a retaliation claim, one must show that an employer treated an employee in a manner that a reasonable employee would have found to be materially adverse. And when you discuss plain old Title VII violations related to failures to hire, failures to promote and wrongful discharges, those are pretty clear — either you get hired, promoted, or fired or you don’t.
But what about transfers, those employment actions that are not “concrete” and don’t result in the loss of a job? The U.S. Supreme Court has a new standard for establishing a Title VII violation for a wrongful transfer, and it’s not a high bar. In Muldrow v. City of St. Louis, the Supreme Court held that any “disadvantageous change in the terms and conditions of one’s employment” is actionable, and that, in my mind, can be in the eye of the beholder (and the Supreme Court said as much itself). Under this new standard, a plaintiff must only show “some harm respecting an identifiable term or condition of employment” to move forward. Not materially adverse or extreme harm — just some harm.
How does this play out for transfer claims? Well, my approach will be to ensure clients have good documentation showing any transfer was voluntary and even requested, and that the transferee’s eyes were wide open as to what the transfer meant, unless of course the transfer is in response to poor performance or in lieu of some greater form of discipline, like termination.
More importantly, could the Muldrow decision’s “some harm” standard impact other types of discrimination claims? I think it could, especially those less-than-concrete claims that are based on the terms and conditions of one’s employment. For instance, will harassment claims require something less than “extreme” conduct? And could some DEI-related claims gain traction— are some individuals getting more opportunities or more help than others based on a protected characteristic, and could one argue that the employees left out of those opportunities are experiencing “some harm”? We’ll just have to wait and see how Muldrow plays out in the district and circuit courts.