What Is An Adverse Action Under Discrimination Law?
NEWSLETTER VOLUME 2.9
|February 28, 2024
What Is An Adverse Action Under Discrimination Law?
The Supreme Court is deciding a case where an employee was transferred to a different position with the same pay and at the same level, but the role appeared to have less status and opportunity. The employee believed the transfer was done based on her gender and she was replaced by a man. The legal issue is even if the transfer was motivated by gender, was there also an adverse employment action that caused harm to the employee?
She certainly thought so. Less opportunity for overtime and less visibility are real. They could probably even be quantified with enough data about overall pay differences between the roles and career path from each role. But the case isn't there yet. It was decided on a legal issue so there hasn't been a trial yet. If she wins, the case will then get tried to decide whether and how she was harmed.
Civil law, which includes employment law, is based on the principle of no harm, no foul. If there's no injury, we don't waste our time and resources figuring out who's right. Civil law is all about addressing the harm people do to other people.
In contrast, criminal law only looks at whether someone broke the law. It doesn't matter whether there is harm or not. A great example is speeding tickets. You get fined because you broke the rule even when nothing bad happened.
In this case, the Supreme Court is trying to figure whether the employment decision to make the lateral transfer caused something bad to happen to the person who was transferred.
What this framing ignores is that discrimination is bad in and of itself. Discrimination is fundamental unfairness that has everything to do with the views and opinions of the person making the decision while the person subject to the decision has no ability to change either the decision or their own gender, skin color, or other protected factors.
Discrimination always causes harm. The practical issue is always about power and whether the decision maker used it fairly. But that's not always the legal framing—even in discrimination law.
In a discrimination claim, the person claiming discrimination has to show how they were harmed by what happened and they have to get the jury or court to agree that they experienced harm.
In this case, one side believes that as long as there is no loss in pay, benefits, or rank/level, employers should be free to transfer employees wherever they want. And generally, employers have this power. This is a reasonable position.
But what if the reason the employer made the transfer was because there was a woman in a high status role and they thought it would be better to have a man in that position? That seems wrong. And it definitely is wrong from a standard of fairness.
We'll find out whether or not it is legal.
To prevail on a discrimination claim under Title VII and similar anti-discrimination laws, the employee bringing suit must prove that he or she suffered an “adverse employment action” because of a legally protected characteristic—such as race, sex, or religion. Historically, courts have ruled that an employment action is “adverse” enough to support a lawsuit only if it significantly disadvantages the employee.
A case before the Supreme Court could lower that standard, thereby subjecting employers to discrimination claims for a far broader array of decisions made in the workplace.
The case is Muldrow v. City of St. Louis. Sergeant Jatonya Muldrow worked for the St. Louis Police Department. She was initially assigned to the Intelligence Division, where she worked on high-profile cases, including on ones involving public corruption, human trafficking, and gang violence. For a time, she was also deputized to work alongside the FBI.
A few years ago, a new police commissioner instituted various staffing changes throughout the department. Sergeant Muldrow was one of the employees affected. She was forced into a lateral transfer to a new division, where she was responsible for supervising patrol officers and responding to service calls involving a variety of serious crimes. A male employee stepped into her prior role.
The transfer did not impact Muldrow’s rank or salary. It did require that she take on different job responsibilities, work a different schedule, and wear different types of clothes to work. The new role also had fewer overtime opportunities. While she was unhappy with the transfer, it does not appear that Sergeant Muldrow argued any of the individual changes to her job were in themselves significantly disadvantageous.
Yet believing her transfer to have been motivated by her sex, Sergeant Muldrow challenged the transfer in court. The lower courts ruled against her, finding that the transfer was not significant enough to support a discrimination claim.
Somewhat surprisingly, the Supreme Court agreed to hear the case on appeal. While the issue framed by the Court is whether Title VII prohibits discrimination in transfer decisions where there is no separate court determination that the transfer significantly disadvantaged the employee, the case boils down to what type of workplace actions an employee will be able to fight in court moving forward.
A decision is expected within the next few months, with many forecasting a win for Sergeant Muldrow based on the Justices’ questions at oral argument.
A win for Muldrow could come in a few different shapes. The Court could issue a narrow decision, limited only to lateral transfer decisions, or it could rewrite the legal standard in a way that carries far-reaching implications for employers around the country. Legal challenges could be filed to poor performance reviews, performance improvement plans, or undesirable job duties, schedules, or supervisory assignments—things that historically could not give rise to discrimination claims.
Some have gone so far as to speculate that if the Court were to adopt a looser standard of what constitutes an adverse employment action, that could lead to challenges to some DEI initiatives through “reverse discrimination” claims. The reasoning is that, if employees are no longer required to prove that an employment decision is significantly disadvantageous in order to bring a discrimination, then there may be a new legal basis to challenge certain subsets of DEI programs that, for example, offer tangible benefits or that are limited to underrepresented groups or specific demographic thresholds.
Considering its potential implications, employers are wise to keep tabs on the Court’s decision and consult with their attorney about how its holding impacts their human resources policies and processes.
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