Employment Law Alert

U.S. Supreme Court Lowers Bar for Discrimination Claims

June 12, 2024

By: David S. Levine

Anti,Discrimination,Law,On,A,Table.,Equality,Concept.In an important recent decision affecting employers, the U.S. Supreme Court lowered the required showing for employees claiming discrimination under Title VII of the Civil Rights Act. In particular, under the Supreme Court’s Muldrow v. City of St. Louis decision issued in April 2024, an employee asserting a discriminatory job transfer under Title VII must show that the transfer constituted a “harm” or “injury” to the employee, but need not establish that the harm or injury was “significant,” “material,” or “serious.” This holding represents a departure from the prior law in many circuits, including the Seventh Circuit where Illinois sits.

In the Legal Update that follows, we describe the Muldrow decision and suggest potential next steps for employers in light of the decision.

The Transfer

The Muldrow case involves a St. Louis police officer, Sergeant Jatonya Clayborn Muldrow, who claims that her job transfer violated Title VII. As described by the Supreme Court, from 2008 to 2017, Muldrow worked as a plainclothes officer in a prestigious position for the St. Louis Police Department. In the position, she had significant responsibility over important investigations and was well-regarded by her commander.

Following the appointment of a new commander, however, Muldrow was required to transfer to a uniformed position where she performed more administrative tasks and worked less regular hours. The new commander would also sometimes call Muldrow “Mrs.” rather than “Sergeant” and remarked that the “very dangerous” work in the former, prestigious position supported the transfer. She was replaced with a male officer.

The Lawsuit

Following the transfer, Muldrow sued the St. Louis Police Department and alleged that the transfer violated Title VII. After discovery, the district court granted summary judgment to the St. Louis Police Department, concluding that Muldrow needed to show a “significant” change in working conditions resulting in “material employment disadvantage” and had not done so. Among other points, the district court noted that Muldrow “experienced no change in salary or rank” and remained in a supervisory role in her new position. Other changes in the new position, the district court remarked, amounted to “minor alterations of employment, rather than material harms.”

The Eighth Circuit adopted similar reasoning in affirming the district court’s decision. The Eighth Circuit noted that the transfer “did not result in a diminution to her title, salary, or benefits” and concluded that the changes in her job responsibilities were “insufficient” to support a Title VII claim because Muldrow could not show that the transfer caused a “materially significant disadvantage.”

The U.S. Supreme Court Holding

In its reversal, the Supreme Court focused on the text of Title VII in holding that an employee need not establish that the harm or injury stemming from a discriminatory job transfer be “significant,” “material,” or “serious.” As the Supreme Court noted, the text of 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 race, color, religion, sex, or national origin.”

The Supreme Court held that although the term “discriminate against” requires “differences in treatment that injure” an employee, the text of Title VII does not require that the injury be “significant,” “material,” “serious,” or any similar adjective suggesting a heightened bar. Accordingly, the Supreme Court reversed the Eighth Circuit decision requiring that an employee show a “materially significant disadvantage” in connection with a job transfer. (Title VII claimants must still show, of course, that a discriminatory reason—e.g., race, sex, or another protected trait—motivated the transfer decision.)

In addition to overruling the Eighth Circuit standard, the Muldrow decision also overrules standards in the First, Second, Fourth, Seventh, Tenth, and Eleventh Circuits. In the Seventh Circuit where Illinois sits, for example, courts had required that the transfer be “materially adverse” to the employee. That is no longer the law following Muldrow.


It remains to be seen how, in practice, lower courts will interpret the Muldrow decision. In a concurrence, for instance, Justice Alito describes the guidance from Muldrow as follows: “Title VII plaintiffs must show that the event they challenge constituted a ‘harm’ or ‘injury,’ but that the event need not be ‘significant” or “substantial.’ I have no idea what this means.”

Although different courts will apply Muldrow in different ways, employers should consider the following steps to reduce exposure in connection with potential job transfers and other employment decisions:

  • Develop Policies. Employers should consider implementing (or updating) policies with respect to job transfers. The policies should set forth objective criteria and processes that apply to such decisions.
  • Document Transfer Decisions. In connection with potential job transfers, employers should document the reason for the transfer to defend against later potential claims of discrimination. This documentation should ordinarily discuss which other employees were considered for the transfer and why the particular transferee was chosen. Employers can consider conducting periodic audits of this documentation to ensure that the transfer decisions are compliant with Title VII.
  • Train Management and Human Resources. Because employees may now have greater incentive to challenge transfer decisions, employers should consider training management and Human Resources on best practices for such decisions. This training should include the importance of documentation (noted above) and discuss any other processes that management and/or Human Resources should follow in connection with evaluating transfers.
  • Scrutinize Other Employment Actions. Although Muldrow focused on a transfer decision, the Supreme Court’s analysis applies to other employment actions that affect a “term” or “condition” of employment. Accordingly, employers should also ensure that non-transfer decisions affecting the “what, where, and when” of an employee’s work are also made on a non-discriminatory basis, ideally with documentation to support that fact.
  • Consider State Law. Remember that many states, including Illinois, have laws that are analogous to Title VII. The Supreme Court in Muldrow did not consider any state laws, but it remains to be seen how, if at all, the Supreme Court reasoning might affect the interpretation of these analogous state laws.

Fox Swibel will continue to follow developments regarding this issue and can be reached at any time. Please contact Steve BrennemanKelly Smith Haley, David Levine, or the Fox Swibel attorney with whom you regularly work to address these issues.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.

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About the Author

David S. Levine

David Levine is an associate in the Firm’s Employment Law and Litigation Groups. David’s practice focuses on representing clients in a wide range of labor and employment matters, as well as other business disputes.

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