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Supreme Court removes “significance test” requirement from Title VII Sex Discrimination Claims, resolving circuit split

5/2/24

By: Katherine C. Chenail and Courtney M. Knight

On April 17, 2024, the Supreme Court issued its decision in Muldrow v. City of St. Louis, Missouri, et al. 601 U.S. ____, (2024), and made it easier for employees to allege sex discrimination under Title VII. 

Muldrow was a female police officer who claimed she was transferred to a less preferable unit because of sex discrimination. However, because there was no change to her pay or rank, she remained a supervisor, and she had not shown damage to her career prospects, the City of St. Louis, Missouri successfully argued before the trial court that the case should be thrown out because Muldrow did not suffer a “materially significant disadvantage.” The Supreme Court, in a unanimous decision, disagreed and reinstated Muldrow’s lawsuit. 

While Title VII of the Civil Rights Act of 1964 requires that an injured employee demonstrate that they suffered a “disadvantageous change in an employment term or condition,” many courts have interpreted that provision to require a heightened standard of “significant,” “serious,” or “substantial” disadvantage from the employment action. The Supreme Court has now ruled that these heightened standards exceed the plain text of the law. 

Justice Kagan delivered the textualist decision and explained that the use of a significance test would impose a new requirement beyond the statutory language that Congress had enacted. To discriminate against an employee because of a protected class means that they were treated worse than other employees, not worse to a particular degree. Now an employee seeking to bring a Title VII Discrimination case must only show he or she “suffered some injury in employment terms or conditions,” which may include a negative change in job responsibilities, location, perks, and schedule. In so holding, the Court rejected the City’s public policy argument, in which it argued that the significant harm requirement prevents transferred employees from “swamp[ing] courts and employers” with insubstantial lawsuits.

Justices Thomas, Alito, and Kavanaugh, joined in the decision but wrote separate concurrences to question the reliance that future litigants may place on an apparent “some harm” requirement found in the majority’s opinion, which they also found objectionable. Thomas opined the standard should be “more-than-trifling-harm.” Alito oddly argued that the language does not matter because the terms are so vague that they allow the lower courts to effectively ignore the ruling. Kavanaugh stated that any transfer made on the basis of the employee’s race, color, religion, sex, or national origin violates Title VII because it is the discrimination itself that is the harm.

Despite the disagreement among the Justices regarding the proper guidance to future litigants, the “some harm” standard is now the law of the land. Employees are not required to prove that they suffered significant harm as a consequence of retaliation in order to see their day in court. Employers should be mindful moving forward when transferring employees to different roles and consider the impact on an employee’s responsibilities, schedule, and job incentives, considering the “some harm” standard the Court enunciated in Muldrow.

For more information on the topic, contact Courtney Knight at courtney.knight@fmglaw.com, Katherine Chenail at katherine.chenail@fmglaw.com, or your local FMG relationship partner.