In an opinion released April 17, 2024, the Supreme Court made it easier for employees to challenge employer transfer decisions based on alleged discrimination. In Muldrow v. City of St. Louis, Missouri, the Court resolved a split among federal appellate courts over whether an employee challenging a transfer under Title VII of the Civil Rights Act must show “significant,” “serious,” or “substantial” harm, or simply “harm” caused by the alleged discriminatory action.

Writing for a Court unanimous in the outcome (if not the reasoning), Justice Elena Kagan concluded that the text of Title VII imposes no such requirement. Specifically, an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant. Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh concurred with the judgment, but Thomas and Alito criticized the language used by the majority, and Kavanaugh would have gone further to find that nearly all allegations of discriminatory transfers would meet the necessary threshold. 

Jatonya Muldrow, a police officer, claimed she was transferred out of a police intelligence unit by a new supervisor who wanted a male officer in the position. While Muldrow's rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. The Court stated that Muldrow “need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow's allegations, if properly preserved and supported, meet that test with room to spare.”

To make out a Title VII discrimination claim, the Court determined, a transferee must show some harm respecting an identifiable term or condition of employment. What the transferee does not have to show is that the harm incurred was significant, serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. “Discriminate against” means treat worse, here based on sex, “But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones,” Kagan wrote.

The ruling may make it easier to bring workplace discrimination lawsuits based on a transfer as “it lowers the bar Title VII plaintiffs must meet.” The ruling creates concerns for school district employers: If more staff transfers can be litigated under federal civil rights law, schools could be forced to spend undue time and resources on litigation rather than serving the educational needs of students. The Court assures, however, “There is reason to doubt that the floodgates will open in the way feared.” Kagan explains, “The anti-discrimination provision at issue requires that the employee show some injury…[it] requires that the employer have acted for discriminatory reasons ‘because of’ sex or race or other protected trait.”

And, in addressing that issue, a court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination. “Courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions,” Kagan explains. “Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so.”

NSBA filed an amicus brief in the case ably drafted by a team led by past NSBA Council of School Attorneys chair Joe Scholler of Frost Brown Todd in Ohio. As Education Week notes, the brief explained how crucial staff transfers are for school officials: “Educational administrators, particularly in large urban school districts, regularly must make a wide range of teacher and support staff assignments and other personnel management decisions to meet the needs of constantly changing student populations.”

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