Expect More HR Involvement in Job Transfers Following Supreme Court Ruling

Job transfers related to discrimination that result in some harm—rather than a significant injury—may be challenged under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court decided April 17. The decision’s “some harm” standard is new and will result in more Title VII litigation because it sets “a relatively low bar,” wrote Justice Brett Kavanaugh in a concurrence. The ruling, written by Justice Elena Kagan, will give rise to more HR involvement in decision-making, legal experts say.

“Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test,” the court stated. “Title VII’s text nowhere establishes that high bar.”

“The court’s decision has practical significance to those HR professionals working in jurisdictions where the courts have required employees to show significant or material harm to support a Title VII claim of discrimination based on a transfer,” said Kelly Petrocelli, an attorney with Faegre Drinker in Chicago.

The court resolved a circuit split regarding whether the harm has to be of significance, material or serious, as held by many circuit courts—including the 1st, 2nd, 4th, 7th, 8th, 10th and 11th circuits. 

“Businesses operating in states within the 8th Circuit and the other circuits that have applied a significant or heightened harm requirement should pay particular attention to this decision, given it will make it easier for employees to bring Title VII discrimination claims based on a forced transfer without having to show that the transfer or employment action resulted in significant harm to the employee,” she said.    

Transfer Resulted in Changes

Jatonya Clayborn Muldrow, the plaintiff in the case before the Supreme Court, maintained that her employer, the St. Louis Police Department, transferred her because she is a woman. Muldrow worked as a plainclothes officer in the department’s specialized Intelligence Division.

A new Intelligence Division commander asked the department to transfer Muldrow out of the unit. He wanted to replace Muldrow—whom he sometimes called “Mrs.” rather than the customary “Sgt.”—with a male police officer. That officer, he later testified, seemed like a better fit for the division’s “very dangerous” work.

While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks and schedule did not. Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, she now supervised the day-to-day activities of neighborhood patrol officers.

Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. The change of jobs also made Muldrow’s workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. After the transfer, she was placed on a rotating schedule that often involved weekend shifts.

The district court held the transfer did not effect a significant change in working conditions or produce a “material employment disadvantage.” The 8th Circuit affirmed, determining that Muldrow did not show that the transfer caused a “materially significant disadvantage.”

High Court’s Decision

The Supreme Court vacated, ruling that the text of Title VII imposes no such requirement.

“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment,” the court said. “Many forced transfers leave workers worse off respecting employment terms or conditions.” 

The court noted that its ruling changes the legal standard used in any circuit that has previously required “significant,” “material” or “serious” injury. Its decision “lowers the bar Title VII plaintiffs must meet,” the court wrote. And because it does so, “many cases will come out differently.”

Take the following examples from case law, the court said:

• An engineering technician is assigned to work at a new jobsite—specifically, a 14-foot-by-22-foot wind tunnel.
• A shipping worker is required to take a position involving only nighttime work.
• A school principal is forced into a nonschool-based administrative role supervising fewer employees.

Employees in all these circumstances experienced some injury in employment terms or conditions allegedly because of race or sex, the court said.

“Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require,” it stated.

Floodgates Opened?

In the city’s view, a significant-injury requirement is needed to prevent transferred employees from “swamping courts and employers” with insubstantial lawsuits.

“There is reason to doubt that the floodgates will open in the way feared,” the Supreme Court said. “The anti-discrimination provision at issue requires that the employee show some injury. It requires that the injury asserted concern the terms or conditions of her employment” for a job transfer case.

To succeed, a claim must show that the employer acted for discriminatory reasons because of sex, race or another protected trait.

“But even supposing the city’s worst predictions come true, that would be the result of the statute Congress drafted,” the court said. “We will not add words to the law to achieve what some employers might think a desirable result. Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so.”

The court remanded the case for further proceedings, including questions of proof.

Lawyers are already debating how far-reaching the decision is.

“Because the decision is narrow to the issue of job transfers, it isn’t going to have a tidal-wave effect on Title VII claims like some feared,” said Leanne Lane Coyle, an attorney with Fisher Phillips in Philadelphia.

However, Adam Brown, an attorney with Duane Morris in Philadelphia, said, “Although the court’s holding technically is about transfers, the reasoning of the opinion potentially applies to all manner of decisions by employers that affect employees in some way. Any change to an employee’s working situation that could be viewed as causing some harm, such as, for example, assigning a different type of work, changing a work schedule or eliminating perks, could give the employee a basis to make a discrimination claim.”

Significance for HR

For HR, the decision means greater involvement in analyzing proposed employment actions that may not seem significant at first blush, said Tiffany Cox Stacy, an attorney with Ogletree Deakins in San Antonio.

“Reorganizations and internal transfers are commonplace and occur for many legitimate business reasons,” Stacy said. HR should assess whether transfers potentially involve unattractive attributes for the impacted employee—such as less visibility, less responsibility or undesirable hours—even if the rate of pay or job classification level remains the same, she added. 

“If there are some potentially negative repercussions for the employee, HR should assess—and document—the legitimate business reason for the transfer and assess whether any potential bias is involved by those recommending the change,” Stacy said.

Employers should continue to document their legitimate, business-related, nondiscriminatory bases for employment decisions—including decisions outside of the hiring and termination context, such as transfers and training opportunities, said Lindsay Burke, an attorney with Covington in Washington, D.C.

She said: “Promptly investigate employee complaints of discrimination to ensure the integrity of decisions made in the workplace.”