Title VII on the Move: Unravelling the Legal Tango of Lateral Transfers
On June 30, 2023, the U.S. Supreme Court granted Sergeant Jatonya Muldrow’s Petition for Writ of Certiorari to hear her case presenting the novel issue of the potential for Title VII violations in lateral transfer decisions.
Sergeant Muldrow, a former deputized Task Force Officer (“TFO”) with the St. Louis Metropolitan Police Department, had been working in the Police Department’s Intelligence Division until June 2017. However, she was later transferred to the Police Department’s Fifth District, which she claims resulted in her TFO status being revoked by her supervising officer. Furthermore, Sergeant Muldrow alleges that she was denied a transfer to the Police Department’s Second District and was refused positions in the Internal Affairs Division (“IAD”) and as a Detective Sergeant in the Second District, both denials allegedly negatively affecting her career advancement.
The case has run the full legal gambit from state court to the U.S. Supreme Court. While the Supreme Court has yet to rule, employers can still gain valuable insights from the facts and decisions of the lower courts, as well as the arguments put forth by the parties during the ongoing proceedings. This case bears significant implications for how transfer decisions are treated under Title VII, and its resolution could have far-reaching consequences for employers and employees alike.
Sergeant Muldrow filed suit on December 27, 2018, in the Circuit Court of the City of St. Louis, Missouri, with the case eventually being removed to the United States District Court for the Eastern District of Missouri, Eastern Division. Sergeant Muldrow alleged that her transfer and the City of St. Louis’s refusal to hire her for her requested positions in the Second District and with the IAD constituted (1) discrimination on the basis of sex and (2) retaliation for reporting acts of discrimination, both in violation of Title VII in addition to the state law corollaries.
The central facts that form the basis of Sergeant Muldrow’s discrimination and retaliation claims are:
- At the time relevant to the claim, she was performing her job duties in a manner consistent with the City’s policies and procedures, and met and/or exceeded the City’s expectations as an employer;
- Her transfer to the Fifth District and loss of TFO status constituted adverse employment actions;
- Her gender was a motivating factor in the City’s decision to transfer her;
- As a result of the transfer, she lost wages, benefits, and suffered emotional distress;
- The City failed to act on her request to be transferred to the Second District; and
- The City denied her the position of Detective Sergeant in the Second District and the position with the IAD.
When addressing discrimination claims under Title VII, courts follow the well-known burden-shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As employment law practitioners know, as part of this framework Sergeant Muldrow needed to prove the existence of an adverse employment action. However, this particular case stands out due to its potential to significantly broaden the definition of what constitutes an “adverse employment action.”
Both the district court and the Eighth Circuit Court of Appeals concluded that Sergeant Muldrow had not successfully proven an actionable case of discrimination under Title VII. Their reasoning was based on the lack of evidence supporting the notion that her transfer constituted an adverse employment action, since it did not result in a reduction in her job title, salary, or benefits. As a result, the Eighth Circuit, in affirming the district court, held that Sergeant Muldrow was unable to establish a claim of discrimination. As her discrimination claim fell, so too did her retaliation claim.
The Eighth Circuit reasoned that “[a]n adverse employment action is a tangible change in working conditions that produces a material employment disadvantage,” and that the court had, in the past, “repeatedly found that an employee’s reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action.” The court concluded that Sergeant Muldrow’s transfer, which involved “only minor changes in working conditions” and no loss of pay or benefits, did not meet the threshold of an adverse employment action.
These statements form the crux of the issue before the Supreme Court: whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions without requiring an additional court determination that the transfer led to a significant disadvantage.
National Employment Lawyers Association’s Supreme Court Argument
At present, five different parties have submitted briefs to the Supreme Court in relation to this case. These parties include the United States, the National Employment Lawyers Association (“NELA”), and the Constitutional Accountability Center (“CAC”), in addition to the two parties to the lawsuit.
NELA, an organization for lawyers who represent workers and employees in employment matters whose mission includes “advocating for laws and policies that level the playing field for workers,” presents three key points directly on the issue of tangible harm:
- The ruling of the Eighth Circuit creates a barrier to addressing potential employment discrimination claims that may have merit.
- The notion of requiring “economic tangible harm” resulting from a lateral transfer, especially given past instances similar to Sergeant Muldrow’s where similar claims were dismissed.
- Non-economic aspects of employment are just as vital to employees as monetary aspects like wages or salaries.
In essence, NELA points out that the Eighth Circuit, while upholding the district court’s decision, demanded evidence of additional “materially adverse consequences” causing “objectively tangible harm,” which primarily relates to economic harm. However, NELA maintains that Title VII does not limit adverse employment actions solely to those with financial repercussions. They argue that harm recognized by the Supreme Court in the past, including treatment that injures individuals protected under Title VII, encompasses factors like humiliation and stress arising from differential treatment based on sex. Including monetary damages as a requirement creates an unnecessary “extra hurdle” that undermines the core purpose of Title VII.
So what does this mean for employers? NELA’s argument suggests that the definition of “damages” resulting from an adverse employment action may not be solely confined to monetary terms. While a potential plaintiff would still need to prove that the transfer occurred due to their membership in a protected class, an adverse employment action, even without financial loss like salary or benefits, could still be deemed actionable if the plaintiff can demonstrate intangible aspects such as alleged loss of prestige, hindered career advancement potential, and feeling less valued/needed when compared to their previous position. This development will open the door for employees who have been laterally transferred into positions they did not desire despite receiving identical compensation.
While the Supreme Court has yet to weigh in definitively, employers may find themselves facing similar situations where employees argue that a lateral transfer constitutes an adverse employment action and creates a claim. To alleviate such concerns, employers should work to ensure that lateral transfers not only avoid any material losses to the employee (such as wages and benefits) but also do not negatively impact the employee’s subjective standing within the organization. This could involve maintaining employee morale throughout the transfer process and accommodating employee requests to the best of the employer’s abilities, all while adhering to standard Title VII requirements.