“Some Harm” is Enough: U.S. Supreme Court Eases Route for Employees to Bring Discrimination Charges and Lawsuits

The United States Supreme Court’s recent decision in Muldrow v. St. Louis has reset the playing field for employers and employees alike when it comes to allegations of discriminatory treatment in the workplace.  In the wake of the Muldrow decision, employers should review their current processes for handling allegations of discrimination and, where appropriate, consider additional safeguards that protect employees and reduce liability concerns.

To understand how we got here, a bit of background is necessary.  The plaintiff in the Muldrow case, Sergeant Jatonya Muldrow, claimed the St. Louis Police Department transferred her from one job to another solely because she is a woman.  (The evidence that she is correct in this claim is strong.)  Muldrow claimed her transfer meant that she no longer worked with high-ranking officials in the Department, lost access to an unmarked take-home vehicle, and had less favorable shifts.  Notably, the transfer did not impact Muldrow’s title, salary, or benefits.  Both the federal district court and the court of appeals held that Muldrow could not proceed with her claims, because the transfer did not cause Muldrow a “materially significant disadvantage.”  This “materially significant disadvantage” standard, or ones similar to it, were commonly applied by most federal courts prior to Muldrow.

The Supreme Court in a unanimous decision held that the language of Title VII does not include a heightened bar that would support this “materially significant disadvantage” standard: “To demand ‘significance’ is to add words … to the statute Congress enacted.”  Instead, the Court determined that a Title VII claimant need only show that he or she suffered “some harm respecting an identifiable term or condition of employment.”

What does this sea change in anti-discrimination law mean for employers?

First, while this Supreme Court decision focused on Title VII, employers should expect this new standard will be applied broadly to other employment discrimination statutes, such as the Americans with Disabilities Act, the Age Discrimination and Employment Act, and Genetic Information Nondiscrimination Act.  The language in these statutes regarding discrimination is similar to Title VII and likewise does not mention a “significance” standard.

Second, employers should consider how they manage internal complaints of discrimination.  For example, many employers with grievance procedures have linked their review process to “significant” events, such as corrective action and performance reviews.  Such employers may wish to consider expanding the types of complaints they consider in their internal grievance processes to encompass the board span of discriminatory acts now covered under Muldrow – including such things as transfers, denial of training opportunities, and scheduling changes.  Employers without a formal internal process for handling complaints of discriminatory behavior might consider implementing such a program with the goal of managing issues internally and heading off possible charges and lawsuits.

Third, employers should rework their anti-discrimination-related supervisor training.  Supervisors should be aware that discrimination (or the appearance of discrimination) in making a wide range of employment decision (not just significant ones like corrective action, pay changes, and performance reviews) not only violates an organization’s values and culture but could also have real liability impacts for a company.

While we will have to wait to see if the “flood of litigation” predicted by the City of St. Louis comes to pass, the Supreme Court’s decision in Muldrow represents a significant reset in the interpretation of federal anti-discrimination statutes.

If you have any questions regarding the United States Supreme Court’s recent decision in Muldrow v. St. Louis, please contact Michael Bowling or another member of the Labor & Employment Practice Group.


Associated People:

Michael W. Bowling

Practice Area:

Labor & Employment