Supreme Court Expands Title VII Liability

The Supreme Court issued a unanimous decision that will make it easier for employees to win workplace discrimination claims under federal anti-discrimination law. The Court held that employees alleging discrimination in job transfers need only show “some harm” as opposed to “significant harm,” lowering the bar for employees and potentially providing increased avenues for anti-DEI lawsuits going forward. 

Net Result: More Title VII Claims: The decidedly lower bar established by the Court may spark a flood of new discrimination lawsuits – including those aimed at DEI initiatives from conservative groups. Under the Court’s new standard, missing out on a minority scholarship or mentorship program, for example, may be considered enough of a harm to sustain a lawsuit. Moreover, depending on how courts apply the Supreme Court’s decision, the difference between “some harm” and no harm may be negligible. As Justice Kavanaugh’s concurrence acknowledges, while the Court still requires some additional harm (besides discrimination), one can “expect that the Court’s approach and my preferred approach [eliminating the harm requirement altogether] will land in the same place and lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100.” 

Considerations for employers:

• Remember that any consideration of any protected class in employment decisions is prohibited in nearly all cases under Title VII. 
  
  
• Be on the lookout for increased litigation – particularly by conservative interest groups – that use this case as fuel against DEI initiatives. 
  
  
• At the end of the day, employees must still show that a decision was made primarily on the basis of a protected characteristic – as long as an employer can show that the decision was made for a legitimate business interest (diversity does not count, generally speaking), they are not liable. 

Background: Under Title VII of the Civil Rights Act, employers are prohibited from making employment decisions based on protected characteristics (e.g. race, ethnicity, gender). For job transfers, many federal courts have required employees to show that the transfer caused “significant harm” for a discrimination claim to succeed. In other words, even if the transfer was motivated by race or gender, and was against the employee’s will, without a showing of further, significant harm, an employee could not succeed in a claim under Title VII. 

The case: The case before the Supreme Court, Muldrow v. City of St. Louis, involved a female police sergeant who alleged she was transferred from her position against her will because she was a woman. The transfer resulted in no loss of title, pay, or benefits, but did reduce certain job perks, including access to higher up officials, use of an unmarked car, and a regular work schedule. The lower courts, including the Eighth Circuit Court of Appeals, dismissed the sergeant’s claims on the basis that she could not show sufficient harm occurred as a result of the transfer. The changes were merely “minor” in the eyes of the lower courts. 

SCOTUS decision: In a unanimous decision, the Court overturned the lower courts and held that the sergeant could proceed with her claim. Specifically, the Court held that employees challenging job transfers as discriminatory under Title VII need only show “some harm,” and that the harm need not be significant. The Court found the lower courts’ requirement that the harm be “significant” was too high a bar and had no basis in the statutory text of Title VII. “Title VII’s text nowhere establishes that high bar,” said the Court. 

What does it mean? At minimum, the Court’s decision makes it easier for employees to succeed in discrimination lawsuits under Title VII by lowering the bar for the level of harm that must be shown – although it is uncertain at present whether this will be applied to all cases or just in job transfer situations. Notably, the Court stopped short of eliminating the showing of harm requirement altogether, which some had feared would be the result of this decision. In a concurring opinion, Justice Kavanaugh advocated for fully eliminating the requirement of a showing of additional harm.

The bottom line: When making transfer decisions that may implicate Title VII issues, consider ensuring that there is no negative impact for the employee and/or discuss suitable alternative approaches with the employee.