Yesterday, the Supreme Court cleared up when a job transfer may be discriminatory. But not really. Actually, not at all.

Suppose an employer transfers an employee, and that employee believes that unlawful bias fueled the decision. Does that transfer have to significantly disadvantage that employee to give rise to a discrimination claim under Title VII of the Civil Rights Act of 1964?

The Supreme Court addressed that issue yesterday in Muldrow v. City of St. Louis, Missouri.

The plaintiff worked as a plainclothes police officer in the Intelligence Division from 2008 to 2017. In 2017, the new Intelligence Division commander requested her transfer to replace her with a male officer. The Department approved the transfer against the plaintiff’s wishes, reassigning her to a uniformed position elsewhere.

While the plaintiff’s rank and pay remained the same, her responsibilities, perks, and schedule changed. For example, she went from high-priority intelligence matters to supervising neighborhood patrol officers. She also lost access to an unmarked take-home vehicle and had weekend shifts.

The plaintiff thought so and asserted a Title VII sex discrimination claim. However, the District Court disagreed, granting summary judgment in favor of the defendant. Then, the Eighth Circuit affirmed, holding that the plaintiff failed to establish that the transfer caused her a “materially significant disadvantage.” Specifically, her change in position “did not result in a diminution to her title, salary, or benefits” and had caused “only minor changes in working conditions.”

Let’s pause here to look at the text of Title VII.

Title VII makes it unlawful for an 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. . . sex.” Undoubtedly, a transfer implicates “terms” and “conditions” of employment.

But how bad does the transfer have to be to rise to the level of discrimination?

According to the unanimous Supreme Court, a plaintiff doesn’t have to prove that they suffered a “materially significant disadvantage.” Instead, they must show that the transfer brought about “some harm” with respect to an identifiable term or condition of employment, but that harm need not be significant.

So, WTH is “some harm”?

In a concurring opinion, Justice Thomas noted that a plaintiff asserting a Title VII claim must show more than trifling harm. “And, there is little practical difference between that principle and the Court’s [‘some harm’] holding.”

Judge Alito pulled no punches, “I have no idea what [‘some harm’] means.

I suspect that many lawyers will cite Justice Kavanaugh’s concurrence. Justice Kavanaugh would have concluded that the transfer alone is enough to state a claim, but acknowledged that “the Court’s new some-harm requirement appears to be a relatively low bar.” He concluded that “anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some additional 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.”

I suspect the net-net is that many trial judges will be more likely to defer quantifying “some harm” to juries rather than grant summary judgment.

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On Friday, April 19, at Noon ET, The Employer Handbook Zoom Office Happy Hour will return on April 19, 2024. Along with my partner, Amy Epstein Gluck, I will discuss the EEOC’s Pregnant Workers Fairness Act final regulations and take your questions, which you can submit in advance here.

The Zoom is free, but space is limited. You can register for it here.