Is a Lateral Job Transfer With No Change in Pay or Benefits an Adverse Employment Action Under Title VII? The Supreme Court has Decided to Weigh In

At a Glance

• The U.S. Supreme Court has granted certiorari to address a split in the circuit courts over whether a forced lateral transfer, with no change in pay or benefits, is an adverse employment action under Title VII.
• The Court will hear arguments in Muldrow v. City of St. Louis, Mo., No. 22-193 later this year or in 2024.

The United States Supreme Court will determine whether a forced lateral job transfer violates Title VII of the Civil Rights Act of 1964 without also requiring the plaintiff to show that the transfer caused a materially significant disadvantage for the employee in Muldrow v. City of St. Louis, Mo., No. 22-193.

The Supreme Court granted certiorari to address a circuit split on the issue of whether a forced lateral transfer, without a change in benefits or pay, is an adverse employment action. The Supreme Court will hear oral arguments in late 2023 or early 2024.

Facts of the Case

Sergeant Jatonya Muldrow served as a patrol detective for the City of St. Louis Police Department. Muldrow received a promotion to the Intelligence Division in 2008. Muldrow worked high profile cases in this role and oversaw the Police Department’s Gang Unit. Eight years later, the Federal Bureau of Investigation (FBI) deputized Muldrow to work as a task officer. With this, Muldrow became eligible for overtime pay (which could be significant), access to an FBI-issued, unmarked vehicle, ability to wear plain clothes, and a set schedule of Monday through Fridays.

In 2017, Captain Michael Deeba took over as the Division’s commander of intelligence. Deeba made numerous personnel changes, including transferring 22 officers (17 men) into other positions, moving four officers (men and women) out of the Intelligence Division, and transferring Deeba to the Fifth District. With that transfer, Deeba’s responsibilities included supervising officers on patrol, approving and reviewing arrests, and responding to violent crime calls. As a result, Muldrow was no longer able to work as an FBI task officer and had to surrender her credentials and FBI vehicle. While Muldrow’s new role offered equivalent overtime pay opportunities, she was now required to work a rotating schedule that included weekends, wear a police uniform, and drive a marked police vehicle.

Muldrow filed a charge with the Missouri Commission on Human Rights (Commission) claiming she was transferred for discriminatory reasons related to her gender. Muldrow received a right-to-sue letter from the Commission. Meanwhile, Muldrow began applying for other roles within the department.

Muldrow was later transferred back to the Intelligence Division (where Deeba was still the commander) and resumed all her previous responsibilities, including the role of FBI task officer. Nevertheless, Muldrow filed a lawsuit in federal court alleging that her 2017 transfer from the Intelligence Division was an adverse employment action based on gender discrimination and that the department did not approve her later requests to transfer in retaliation for engaging in protected conduct.

Lower Court’s Analysis

The U.S. District Court for the Eastern District of Missouri held that “no reasonable jury could find that Plaintiff’s transfer rises to the level of a material change in employment necessary to demonstrate an adverse employment action.” Absent a material change, the court found no prima facie case of discrimination and granted summary judgment in favor of the City on Muldrow’s Title VII claim.

The Eight Circuit’s Decision

The Eighth Circuit affirmed the district court’s holding, stating an adverse employment action is “a tangible change in working conditions that produces a material employment disadvantage.” That holding was consistent with the Court’s previous stated opinion that “a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” Here, the only evidence Muldrow provided was her own deposition testimony that her pay and rank remained the same after her transfer. While Muldrow lost the ability to receive the $17,500 pay from the FBI, she was still eligible for overtime pay but chose to not take advantage of those opportunities. Those facts are significant because the Eighth Circuit has repeatedly found “an employee's reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action.” Furthermore, the Supreme Court’s decision in Burlington N. & Santa Fe Ry. Co. v. White, identified the level of harm that an employer’s adverse actions must meet to “discriminate against” an employee, and all the actions taken against Muldrow did not aggregate to a materially adverse action, according to the Eighth Circuit. Since Muldrow could not prove “materially significant harm,” the Eighth Circuit affirmed the City’s motion for summary judgment.

Parties’ Arguments Before the Supreme Court

Muldrow argues the Eighth Circuit’s holding is at odds with Title VII § 703(a)(1)’s text because that text does not require “that an employee show a ‘significant disadvantage’ or meet any other heightened-harm requirement.” Rather, the necessary elements of Title VII § 703(a)(1) are that an employer “(1) discriminated against her (2) in the terms, conditions, or privileges of employment (3) because of sex.” Therefore, the Eighth Circuit’s heightened-harm requirement improperly limits claims based on a transfer to only those where the plaintiff can show the transfer imposes a “significant disadvantage.” But Mudrow argues any transfer should automatically establish per se harm under § 703(a)(1), quoting the Supreme Court’s McDonnell Douglas and Ellerth decisions, where the Court did not apply a heightened-harm requirement. Additionally, Muldrow argues that Congress did not limit § 703(a)(1) to discrimination that imposes a “significant disadvantage.” Therefore, Muldrow contends the judgment of the Eighth Circuit should be reversed.

Conversely, the City of St. Louis (City) insists there must be some “objectively meaningful harm” with regards to a job transfer, relying on the statutory text and context of § 703(a)(1), which requires material, objective harm. A per se rule (i.e., where the harm requirement is automatically satisfied anytime a plaintiff challenges a change in the terms or conditions of employment based on an employer’s supposed improper intent) is unworkable because not every job transfer harms an employee and a per se rule is not supported by the statutory text, its context, or a traditional statutory meaning. Indeed, the Burlington Northern decision held that to “discriminate against” means “differences in treatment that injure protected individuals.” (emphasis added). The City asserts that § 703(a)(1) must be read alongside § 703(a)(2), which prohibits certain adverse employment actions, and therefore material, objective harm is required under Title VII.

The City’s position is supported by several groups, such as the National Employment Lawyers Association, the NAACP Legal Defense and Educational Fund, and the National Women’s Law Center, each of which has filed an amicus brief arguing that a transfer need not cause a materially significant disadvantage to an employee’s title, pay or benefits to be discriminatory. The ACLU and Constitutional Accountability Center have argued that an employee who agreed to do one job but is forced to do another has had the “terms and conditions” of their job changed, and therefore has established an adverse employment action for purposes of Title VII.

Potential Impact to Employers

If the Supreme Court decides that a lateral transfer with no change in pay or benefits can be an adverse employment action under Title VII, that holding could have implications for employers as they make day-to-day workplace decisions about discipline, work assignments, performance issues, and other actions that are short of demotions or terminations. Further, if the definition of an adverse employment action expands, an uptick in employment discrimination claims is likely to follow.