TITLE VII IS NOW A GRIEVANCE STATUTE FOR EMPLOYEES
April 17, 2024
For years, federal courts have followed two mantras: (1) employment statutes should not function as “general civility” codes in the American workplace; and (2) Title VII is not a vehicle for a court to serve as a super-personnel department weighing the prudence of employments decisions. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Morgan v. Mylan Pharms. Inc., No. 1:21-cv-141, 2023 WL 2027101, at *3 (N.D.W. Va. Feb. 15, 2023); Mauro v. Infocision, Inc., No. 1:19-cv-6, 2020 WL 5633428, at *7 (N.D.W. Va. Sept. 21, 2020).
Those mantras fell by the wayside today following the Supreme Court decision in Muldrow v. City of St. Louis, Missouri, et al., No. 22-193, 601 U.S. ___ (2024).
As practitioners often note, bad facts make bad law, and that holds true for the Court’s holding in Muldrow. The plaintiff, a woman who obtained the rank of Sergeant with the St. Louis Police Department, alleged that she was transferred from the Intelligence Division to another unit because she is a woman. Although Muldrow’s rank and compensation remained the same, some important elements regarding the terms and conditions of her employment were changed. She lost FBI credentials, a take home vehicle, and she was required to work an irregular, rotating schedule that included weekends. Muldrow also claimed that she lost some intangible benefits as well, including loss of prestige and networking opportunities.
Muldrow brought a Title VII claim against her employer, alleging that her transfer was based on her sex. The District Court dismissed her claim on summary judgment, finding that Muldrow failed to show that her transfer resulted in a “significant” change in working conditions. The Eighth Circuit affirmed, holding that Muldrow failed to show that the transfer caused a “materially significant disadvantage.”
Today, in a unanimous opinion, the Supreme Court reversed that decision. Justice Kagan focused on the plain text of the operative language from Title VII:
Title VII makes it unlawful for any employer ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin.’
Id. at * 5 (emphasis added).
According to Justice Kagan, the phrase “discriminate against” only requires a Title VII plaintiff to show a “disadvantageous” change in a term or condition of employment. Id. And the “terms [or] conditions” phrase should be construed more broadly than “in the narrow contractual sense.” Id. at *6. Therefore, to proceed on a Title VII discrimination claim, a transferee only has to show “some harm respecting an identifiable term or condition of employment.” Id. (emphasis added).
What is “some harm?” Based on the holding in Muldrow, it appears to be any harm. Most folks probably accept the premise that having to work a different schedule that involves weekend work constitutes an “identifiable term or condition of employment.” The same holds true for a vehicle. And losing those benefits definitely constitutes “some harm.” The fact that the District Court failed to appreciate these altered terms and conditions as “significant” is perplexing. But what about the intangible benefits that Muldrow claimed – prestige and networking? What if the only person who perceived a loss in prestige and networking is Muldrow?
It’s difficult to fault Justice Kagan’s focus on the plain text of Title VII, but Muldrow has the potential to make the most mundane personnel decisions subject to litigation risk based upon perceived slights regarding stature and status. Additionally, employers and practitioners can expect the reasoning in Muldrow to be applied in other contexts because many federal and state employment statutes are modeled after Title VII. The takeaway is that employers need to expand their perception regarding traditional notions of adverse employment actions. The logic of Muldrow has no end point. It will be applied to personnel transfers, reassignment from one department to another, reassignment to different supervisors, workstations, parking spots, and proximity to the bathroom. Pandora’s box has been opened.