Is the reassignment of an employee to a different role with identical pay and benefits considered an adverse employment action under Title VII of the Civil Rights Act of 1964? The likely answer is affirmative.
The U.S. Supreme Court is anticipated to address this issue soon in the Muldrow v. City of St. Louis, Missouri case. Should the Court determine that an employee's transfer to a lateral position based on a protected characteristic qualifies as an adverse employment action, employers will need to exercise caution when reassigning or transferring employees to different roles, even if such changes do not impact compensation and other benefits.
Circuit Division
Currently, a split exists among the U.S. Courts of Appeals on this matter. The District of Columbia, Sixth, Eighth, and Ninth circuits seem to support the notion that a transfer without further consequences does not give rise to a Title VII discrimination claim. Conversely, the Third and Fifth circuits appear to take an opposing stance.
Case Context
In the Muldrow case, Jatonya Clayborn Muldrow, a female police sergeant with the City of St. Louis Police Department, was moved from the intelligence division to another police district. Although her new position did not alter her pay and rank, it did change her responsibilities and potential for earning overtime pay. Muldrow initiated legal action against the police department, contending that her transfer was a sex-based decision in violation of Title VII, irrespective of the similar benefits in her new role.
The district court ruled in favor of the City, stating that reassignment alone, without evidence of resulting disadvantage, does not constitute an adverse employment action. The U.S. Court of Appeals for the 8th Circuit concurred, asserting that minor changes in duties or working conditions, even unwelcome ones, which cause no materially significant disadvantage, do not meet the threshold for an adverse employment action under Title VII.
Muldrow successfully petitioned the Supreme Court to decide the case, and oral arguments were held in December 2023.
Supreme Court Discussion
During oral arguments, Muldrow's counsel urged the Court to decide that transfer alone, regardless of significant harm, based on a protected characteristic, qualifies as an adverse employment action. The police department argued that transfer alone is insufficient; tangible harm to the employee must occur for a viable adverse employment action claim under Title VII.
The Court seemed to lean towards Muldrow. Justices Gorsuch and Kavanaugh emphasized that disparate treatment based on a protected characteristic, such as sex, is inherently discriminatory, and Justice Alito acknowledged that disparate treatment based on a protected characteristic is improper. However, the justices indicated that whatever decision the Court reaches would be narrowly confined to transfers.
Impact on Employers
If the Court rules in favor of Muldrow, employers will need to closely monitor transfers and job reassignments to ensure they do not constitute unlawful adverse employment actions. This may be particularly relevant when employees are reassigned to new roles upon returning to work after taking leave, as they could claim violations not only under Title VII but also under the Family and Medical Leave Act or the Americans with Disabilities Act. Moreover, requiring an employee to change positions to accommodate a disability, especially when the employee does not prefer the accommodation, could be legally challenged. Employer policies related to employee transfers based on nepotism or non-fraternization policies might also face scrutiny. Of course, to build a viable claim stemming from a job transfer, employees must still prove that the change was due to a protected characteristic, and employers can continue to assert legitimate non-discriminatory reasons for the transfers.
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