Discrimination is Harm

Supreme Court Rules Employees Need Not Show Transfer Caused ‘Significant’ Harm For Title VII Claims

by Tiffany Cox Stacy, Morgan Pike Epperson, and Zachary Zagger

at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The ruling in the closely watched case eases the path for Title VII claims over job transfers and could potentially open the door for more Title VII discrimination claims beyond those alleging traditional claims over adverse employment actions, namely hiring, firing, and promotion decision, including reverse discrimination claims challenging employer diversity, equity, and inclusion (DEI) initiatives. Such claims have faced increased scrutiny since the Supreme Court’s June 2023 decision on race-conscious admissions in higher education.

SCOTUS Says Forced Lateral Job Transfers Can Support Discrimination Claims in Some Circumstances: Key Employer Takeaways

by J. Randall Coffey, Leanne Lane Coyle, and Edward Harold at Fisher Phillips

You should note that the Court did not go so far as to hold that all mandatory lateral transfers are adverse actions – instead, transferees must always show at least some harm beyond the harm of being transferred for allegedly discriminatory reasons. This is good news for employers, since the SCOTUS decision leaves some mechanism for weeding out complaints that truly don’t show sufficient injury to justify bringing a lawsuit. But we might continue to see federal court disagreements on precisely what “some” harm means — and we anticipate seeing a wealth of cases at the district court and appeals court level on this issue in the coming years.

U.S. Supreme Court Holds that Title VII Requires Employees Establish only "Some Harm" as a Result of Transfer, Rejecting Lower Court Ruling that Harm must be "Significant" to Constitute Discrimination
by Proloy Das and Johanna Zelman at FordHarrison

Although decided under Title VII, Muldrow will be equally applicable to other federal anti-discrimination statutes, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act. Many employers, like St. Louis in Muldrow, have successfully defended lawsuits alleging discriminatory forced transfers with the argument that a transfer, absent a change is salary, benefits or other tangible employment benefits, is not actionable. Muldrow changes this, making it easier for employees to prove their forced transfer discrimination claims. Under Muldrow, the lesser and nontangible effects of transfer, such as a less favorable office, different work schedule, a new supervisor, or new work assignments, may now be actionable if they result in “some harm.” What Muldrow does not do, as pointed out by Justice Alito in his concurring opinion, is define the limits or meaning of “some harm.” While it remains to be seen if this decision will “open the flood gates” to discriminatory transfer claims, employers should expect increased motion practice over the meaning of “some harm” as the courts grapple with Muldrow’s effect and how to interpret this new standard.

Unanimous Supreme Court Issues Legal Standard for Title VII Suits Alleging Discriminatory Job Transfers

by Phillip Schreiber and Jasmine Tobias at Holland & Knight LLP

Employers transferring employees to other positions within their organizations should take note that such job actions are now subject to judicial scrutiny even if the employee does not suffer a reduction in pay or benefits and remains at the same level. Accordingly, employers should exercise the same care when making job transfer decisions as they do when making discharge decisions.

Notably, Muldrow may open the door to other viable claims under Title VII where the employment action does not involve a material change in the employee's terms and conditions of employment. For example, would office assignments give rise to a claim if the employee alleges that they were placed in an office farther away from a key decision maker than other employees because of a discriminatory motive, thereby reducing the employee's ability to interact with the decision-maker, receive choice assignments and advance their career? These scenarios will have to play out in the lower courts to understand the full implications of Muldrow.

Supreme Court Says Forced Job Transfers Must Cause Harm, But it Doesn’t Have to be Significant

by Jeffrey Grosholz and Chase Hattaway at Rumberger | Kirk
https://www.jdsupra.com/legalnews/supreme-court-says-forced-job-transfers-3998062/

This decision by the Supreme Court will necessitate a change for many federal circuits’ approach to Title VII actions which challenge job transfers, as many had previously required plaintiffs challenging transfer decisions show a heightened degree of harm. The Eleventh Circuit, which has jurisdiction over Florida, Georgia, and Alabama, had required a showing of a “serious and material change,” for example. No longer.

In this way, Muldrow arguably lowers the threshold for bringing Title VII lawsuits based on forced transfers in the workplace. While the Court was skeptical that this decision would open the proverbial floodgates of litigation, employers must still be mindful of possible inadvertent consequences when making transfer decisions given all an employee must now show is some form of harm resulting from the transfer. Lateral transfers, which may not change things such as rank and pay, may nonetheless be considered adverse employment actions if they have other, harmful effects such as those affecting the employee’s responsibilities, perks, and schedule.