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Legal Updates

Supreme Court Eases Title VII Proof Threshold

The United States Supreme Court recently held, in a 9-0 decision, that a plaintiff claiming discrimination under Title VII based on a job transfer need not show that she suffered “significant” harm as a result of the transfer.

The Court’s decision, in Muldrow v. City of St. Louis, lowers the bar for plaintiffs in establishing discrimination claims under Title VII, including potential challenges to employer diversity, equity, and inclusion (“DEI”) programs.


Sergeant Jatonya Clayborn Muldrow, a plainclothes officer in the St. Louis Police Department, worked in the specialized Intelligence Division on high-profile cases and was deputized by the FBI. Muldrow enjoyed a set schedule, an unmarked vehicle for personal use, and other perks.

The City’s new commander subsequently transferred Muldrow to a less prestigious, uniformed position. Muldrow did not suffer any change in title or compensation, but she now had significant administrative responsibilities and lost her FBI-related privileges. The City replaced Muldrow with a male officer.

Muldrow brought suit under Title VII, claiming that the City had unlawfully altered the terms and conditions of her employment based on her sex. The District Court granted the City’s motion for summary judgment on the basis that Muldrow had failed to show that her transfer effected a “significant” change in her working conditions, producing a “material employment disadvantage.” On appeal, the Court of Appeals for the Eighth Circuit affirmed the decision.

The Supreme Court granted certiorari to resolve a circuit split over whether Title VII imposes a “heightened harm” requirement – be it “dubbed significant, serious or something similar.”

Legal Analysis

In a unanimous opinion authored by Justice Elena Kagan, the Supreme Court held that a Title VII discrimination claimant need not show a “heightened” level of harm resulting from an adverse job action.

The Court first looked at the text of Title VII, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of an individual’s … sex.” Based on this statutory language, the Court concluded that a Title VII complainant must show some “harm” respecting an identifiable term or condition of employment.

The Court noted, however, that the language of Title VII does not require that a complainant show that the harm was “significant” or “serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” To add words – e.g., “significant” – to the statute Congress had enacted, Justice Kagan held, would impose a new requirement on a claimant not contemplated by the statute’s plain language.

Based on this analysis, the Court concluded that Muldrow need only show “some” injury or harm respecting the change in her employment terms or conditions.

Implications For Employers

By lowering the bar for potential discrimination claims, the Supreme Court’s decision in Muldrow may lead to increased Title VII litigation. Although the case involved sex discrimination based on a job transfer, the Court’s reasoning applies broadly to other types of discrimination claims under Title VII, such as claims based on race, color, religion or national origin.

Similarly, the Muldrow holding is not limited to job transfers. Employees and plaintiffs’ attorneys will likely seek to apply it in the context of other adverse actions with a relatively modest effect upon terms and condition of employment, such as remote and hybrid working.

Along similar lines, employees may be more likely to attack DEI initiatives now that the Supreme Court has made clear that there is no requirement of a showing of “heightened” harm. For instance, an employee alleging that an employer benefit was unlawfully offered or restricted on the basis of race need not show that the benefit was of substantial value.

Finally, the Court emphasized that its holding does not apply to claims of unlawful retaliation under Title VII. In that context, an employment action must be “materially adverse” to support a claim. Indeed, the Court specifically rejected the City’s attempt to equate the standard for Title VII retaliation claims with the standard for Title VII discrimination claims.

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Please feel free to contact us if you have questions about the Supreme Court’s Muldrow decision or any related issues. Schwartz Hannum’s employment lawyers have a wealth of experience in counseling employers on avoiding discrimination claims, and in defending employers in litigation when such claims do come up.