Be Careful Not To Discriminate When Requiring An Employee To Transfer To A New Department

The U.S. Supreme Court ruled last week that a job transfer could serve as the basis of a discrimination claim under Title VII, without a showing of “significant” harm. In Muldrow v. City of St. Louis, Missouri, the Court rejected a significant harm requirement to bring such a claim, indicating that the claimant need only show some injury in their employment.  

Plainclothes Officer Jantoya Clayborn Muldrow contended that she was transferred from the Department’s specialized Intelligence Division of the St. Louis Police Department to a different department because she is a woman. The new Intelligence Division commander transferred Muldrow so he could replace her with a male police officer. Against Muldrow’s wishes, the Department reassigned her to a uniformed job supervising the day-to-day activities of neighborhood patrol officers. 

“Her rank and pay remained the same in the new position, but her responsibilities, perks, and schedule did not. She no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division. She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts.”

Concurring in the decision, Justice Kavanaugh appeared willing to go even farther and remove entirely this lower bar of proof of some injury, indicating that the discrimination is the harm.  However, the majority decision does require a showing of some injury, recognizing though that there can be varied types of disadvantage in employment.  

The lesson here is to carefully consider the impact on all kinds of terms and conditions of employment when transferring employees who are members of protected classes. It may not be enough to simply maintain the employee’s title, pay and financial benefits.  As Justice Kavanaugh noted, a change in conditions of employment could be viewed quite broadly: “(A)dditional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”