What must an employee show to establish they have been subject to adverse action by their employer? In Muldrow v. City of St Louis, the Supreme Court  of the United States considered this question. Sergeant Jatonya Clayborn Muldrow (Plaintiff), a plainclothes officer in the City of Saint Louis Police Department’s (City) specialized Intelligence Division, was transferred against her wishes by a new Division commander, Michael Deeba. The outgoing  commander had described Plaintiff as a “workhorse” and told the incoming Deeba she was the Sergeant to “count on” in the Division. Deeba replaced Plaintiff with a male officer and described Plaintiff’s new assignment as a better fit than the “very dangerous” work of the Intelligence Division.

Plaintiff maintained the same rank and pay but experienced a change in her “responsibilities, perks and schedule.”  She was no  longer working on Department priorities with high-ranking officials and lost her status as an FBI task force officer and the associated unmarked take home vehicle. In addition, Plaintiff  was reassigned to a uniformed position charged with oversight of neighborhood patrol officers and placed on a rotating schedule that included weekend shifts. Plaintiff brought an action alleging discrimination based on gender “with respect to” the “terms [or] conditions of employment.”

The District Court dismissed Plaintiff’s claims on summary judgment, finding Plaintiff had not established a “significant change” in working conditions that resulted in a “material employment disadvantage” as her rank and salary had remained the same and the other impacts were “minor.” The Eighth Circuit agreed and upheld summary judgment.

The U.S. Supreme Court vacated the lower court decisions, holding Title VII, which prohibited discrimination based on gender, required that Plaintiff “show only some injury respecting her employment terms or conditions.”  The Court determined that, although the Plaintiff must establish that the transfer left her in a less favorable position, she is not required to prove that she was significantly or seriously disadvantaged, as had been asserted by the lower court. It was enough for Plaintiff to show she had “some” change to the “what, where and when” of her work in a manner that resulted in worse treatment because she was a woman.

The  Court distinguished  discrimination claims from those of retaliation which have a heightened “materially adverse” threshold, as the two types of claims have different purposes. The Court stated that retaliation is the employer’s attempt to deter employees from enforcing a violation of non-discrimination provisions as opposed to the anti-discrimination language which prohibits the discriminatory conduct in the first instance. In rejection of the City’s policy claim that a “some harm” standard would result in a flood of meritless claims, the Court reiterated that Title VII, as drafted by Congress, does not require significant harm and the Court will not “add words to the law” to achieve a result desirable to employers.

The “some harm” standard adopted by the Court provides employees a broader menu of conduct to rely upon when claiming they have been subject to adverse employment action. Stay tuned next week as we look at application of the “some harm” standard to other anti-discrimination provisions. If you or your organization need assistance managing employee conduct or  evaluating the potentially adverse impacts of employer initiatives, contact Wiley Reber Law, for legal advice that works.

Also, the Bears still stink.