The U.S. Supreme Court's decision in Muldrow v. City of St. Louis, Missouri has made it easier to win a discrimination case under Title VII of the Civil Rights Act of 1964. In particular, the outcome allows employees to prevail even where a discriminatory action didn't hurt their paycheck or title — a common scenario that previously faced an uphill battle in court.
This expert analysis by
TELG principal Kellee Boulais Kruse and TELG associate Briana Scholar was published by Law360 on April 25, 2024.
Originally published in:
5 Job Actions That Can Be Found Illegal After Justices’ Title VII Ruling
By Kellee Boulais Kruse and Briana L. Scholar
Last week, the U.S. Supreme Court significantly loosened the standard for a workplace action to be considered discrimination under Title VII of the Civil Rights Act of 1964.
With its opinion in Muldrow v. City of St. Louis, Missouri, the court wiped away decades of lower-court rulings that held that employees can prove illegal bias only after establishing that a job action has caused them “materially significant” harm — a judge-invented test that, in practice, generally required a pay cut or demotion.
No such hurdle should ever have existed, wrote Justice Elena Kagan in her Muldrow opinion, which was joined by five other justices and drew concurrences in the judgment from the remaining three.
Under Title VII, Kagan said, aggrieved employees must show only “some harm respecting an identifiable term or condition of employment,” with no requirement that the harm be significant or “serious, or substantial, or any similar adjective suggesting … a heightened bar.”[1]
Muldrow concerned a St. Louis police sergeant who claimed she was transferred, on the basis of her sex, to a less desirable position without any reduction in her rank or pay.
According to the courts below, all the resulting harms the sergeant cited — including a loss of prestige, worse duties, a worse schedule and a loss of perks including a take-home vehicle — were “only minor changes in working conditions,” in the words of the U.S. Court of Appeals for the Eighth Circuit, and therefore not actionable.[2]
But Title VII gives no free pass to minor discrimination, according to the justices in Muldrow: “‘Discriminate against’ means treat worse, here based on sex,” Kagan wrote. “But neither that phrase nor any other [in Title VII] says anything about how much worse.”[3]
Clearly, then, discriminatory transfers are illegal under Title VII as long as some harm occurs. What other job changes are likely to be actionable, if they cause harm?
Below, based on our reading of Muldrow, we list five other types of workplace action that — if rooted in discrimination — are newly blessed for litigation under the venerable civil rights law.
Smart plaintiff-side attorneys probably won’t file suit over just one of these actions, unless it’s truly egregious. And the damages for such claims remain to be seen. Still, an accumulation of these wrongs could make for a strong Title VII case, even if an employer hasn’t touched its employee’s title or pay.
1. Putting an Employee on a PIP
Before Muldrow, defendants could cite plenty of opinions that said being put on a performance improvement plan, or PIP, isn’t enough — without a harm deemed “significant” — to support a claim of discrimination, even if it was done for discriminatory reasons.
For instance, in Jensen-Graf v. Chesapeake Employers’ Insurance Co. in 2015, the U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of the plaintiff’s claim of a discriminatory PIP because the employee “failed to allege that she received lower pay, was demoted, was passed over for a promotion, failed to receive a bonus, or [was] given significantly different responsibilities” as a result.[4]
After Muldrow, however, a PIP may be considered discriminatory if an employee can link it to any workplace harm — not just a change in rank, salary or something else “significant.”
Some companies exclude employees on PIPs from applying for transfers, for example: If an employee could cite a specific opportunity that they missed, and for which they were otherwise qualified, this could meet the new Muldrow standard.
Similarly, Muldrow seems to recognize professional reputation and prospective advancement as cognizable areas of harm. If an employee can show that a PIP affected their standing with managers, that could be enough to support a claim.
What’s more, Justice Brett Kavanaugh, in his concurrence, appears to allow for squishier areas of harm like an employee’s satisfaction and “interest level.”[5] If supported by evidence, such harms could bolster an argument for damages.
2. Removing Supervisory Duties
Before Muldrow, a loss of supervisory duties wasn’t considered “materially adverse” by many courts, and thus was a dubious basis for action under Title VII.
For example, in Joiner v. Ohio Department of Transportation in 1996, the U.S. District Court for the Southern District of Ohio found that an employee couldn’t sustain a discrimination claim because his “grade level, salary, and benefits remained the same,” even though there was “some evidence [his] job duties and work environment changed, including … the loss of supervisory responsibility.”[6]
In her Muldrow opinion, however, Justice Kagan squarely framed the St. Louis sergeant’s post-transfer change in supervisory responsibility — not a removal from supervision, just a change in its nature — as a cognizable harm.[7]
And in her litany of appellate decisions that improperly “rewrote Title VII,” Kagan disapprovingly cited a case where a school principal was forced to supervise fewer employees yet wasn’t found to have been injured enough to sustain a claim.[8]
It’s unclear whether, under Muldrow, a diminished supervisory role is itself the injury, as a pay cut would be, or whether some resulting harm must also be pleaded — networking opportunities or prestige, for instance, as the sergeant in Muldrow argued.
Either way, a removal of supervisory powers can now be found to be a discriminatory action.
3. Imposing Harsh Schedule Changes
Before Muldrow, even disruptive schedule changes generally weren’t enough, by themselves, to succeed in a claim of discrimination under Title VII.
In 2012, for example, the U.S. District Court for the Southern District of New York put it bluntly in Albuja v. National Broadcasting Co. Universal: “Where the change in schedule does not occasion a reduction in wages or job responsibilities, unfavorable schedules are a ‘mere inconvenience’ and not an adverse employment action.”[9]
Along with a change in supervisory duties, however, the sergeant in Muldrow suffered unwelcome shift changes because of her transfer: She lost her regular Monday-to-Friday schedule, which Justice Kagan described as a “material benefit.”[10] And once again, in her list of wrongly decided appellate cases, Kagan included a matching illustration — a shipping worker who is forced to work only at night.[11]
Post-Muldrow, therefore, schedule changes can be an adverse action. Some concrete harm should be pleaded: Justice Kavanaugh’s suggestion of harmful “effects on family obligations”[12] could be a good starting point.
4. Downgrading Job Duties or Work Conditions
In our experience, employers often discriminate by giving unwanted, low-satisfaction work — and lots of it — to disfavored employees, even while maintaining their pay and title.
Before Muldrow, it was tough to claim Title VII discrimination on this basis. For example, in 2019, the Southern District of New York ruled in Smith v. City of New York against a Black police officer who was relieved of training duties and assigned to deliver mail instead, saying that his argument about a loss of prestige “amounts to nothing more than subjective dissatisfaction with his work assignment.”[13]
The U.S. Court of Appeals for the Fifth Circuit, meanwhile, said it straight out in Southard v. Texas Board of Criminal Justice in 1997: “Undesirable work assignments are not adverse employment actions.”[14]
Except now Muldrow says otherwise: The change in the St. Louis sergeant’s work, and specifically the fact that her new job was less “prestigious” and more “administrative,” was listed first among the allegations that Justice Kagan said could meet Title VII’s injury requirements “with room to spare.”[15]
The terms and conditions of an employee’s job, Kagan wrote, are “nothing less than the what, where, and when” of employment.[16] So if the what of a job changes, we have an opportunity for actionable harm.
As an example, Kagan cited a 1999 case from the Fourth Circuit, Boone v. Goldin, in which an employee was assigned to work at a large wind tunnel — which, again, Kagan called an injury under Title VII.[17]
After Muldrow, it’s safe to assume that bad work assignments — to the extent that they’re discriminatory and harmful — can be properly pleaded in support of a Title VII claim. This also could apply to the denial or withdrawal of remote work, depending on circumstances.
5. Withdrawing Perks
Before Muldrow, the removal of fringe benefits, without more, generally couldn’t support a claim of Title VII discrimination.
In 2013, for instance, the U.S. District Court for the District of Puerto Rico found in Irizarry-Santiago v. Essilor Industries that an employee’s loss of a company car, even in combination with other slights, didn’t meet its standard.
“Federal courts repeatedly hold that an adverse employment action must affect more than de minimis aspects of an employee’s work,” the judge wrote, lumping the employee’s harms into the category of “trivial, subjectively perceived inconveniences.”[18]
But Muldrow also involved a take-home vehicle, and the Supreme Court’s evident rejection of the Eighth Circuit’s description of its loss as “a minor alteration[] of employment” should make lower-court judges hesitate before finding any perk removal to be “de minimus.”[19]
Beyond cars, the removal of career-related fringe benefits, such as training opportunities or educational reimbursement, will provide even stronger examples of a harmful change to “terms and conditions” of employment, in our opinion.
Conclusion
Muldrow makes it risky for employers to take any of the five job actions listed above — and, indeed, any discriminatory job action whatsoever — against an employee protected by Title VII, which is exactly as it should be.
In short, it’s no longer viable to make work miserable for disfavored employees while leaving their pay and title untouched. Muldrow is a full-on rejection of that shabby ploy and, in our opinion, more corporate defendants will face juries as a result.
Some things remain unchanged, to be sure: The requirement for significant harm still applies to claims of retaliation under Title VII, for instance. And there are still gray areas, including the question of damages for harms that previously weren’t seen — by judges, not juries — as “materially significant.”
So is the juice here worth the squeeze? For many employees seeking justice, it certainly will be. And Muldrow makes the squeeze a lot easier.
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[1] Muldrow v. City of St. Louis, Missouri, No. 22-193, 2024 WL 1642826, at *5 (U.S. Apr. 17, 2024).
[2] See id. at *4.
[3] Id. at *5.
[4] Jensen-Graf v. Chesapeake Employers’ Ins. Co., 616 F. App’x 596, 598 (4th Cir. 2015).
[5] Muldrow at *9.
[6] Joiner v. Ohio Dep’t of Transp., 949 F. Supp. 562, 567 (S.D. Ohio 1996).
[7] Muldrow at *3–4.
[8] Id. at *5.
[9] Albuja v. Nat’l Broad. Co. Universal, 851 F. Supp. 2d 599, 608 (S.D.N.Y. 2012).
[10] Muldrow at *4.
[11] Id. at *5.
[12] Id. at *9.
[13] Smith v. City of New York, 385 F. Supp. 3d 323, 336 (S.D.N.Y. 2019).
[14] Southard v. Texas Board of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997).
[15] Muldrow at *7.
[16] Id. at *5.
[17] Id.
[18] Irizarry-Santiago v. Essilor Indus., 982 F. Supp. 2d 131, 136 (D.P.R. 2013)
[19] Muldrow at *4.
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Kellee Boulais Kruse is principal of The Employment Law Group, P.C.; Briana L. Scholar is an associate at the firm.
(Note: This article has been edited slightly from the version published by Law360, and carries a different headline.)
