Courts Apply New Title VII Standard
By Bill Josey
For the past 60 years, to assert a valid employment discrimination claim under Title VII of the Civil Rights Act of 1964, an employee had to allege a “materially significant" or "serious" disadvantage resulting from an employer's adverse actions. This meant that employer actions that did not inflict significant harm, such as economic loss, were frequently rejected by the courts, even if the actions were somewhat disadvantageous to the worker.
The Supreme Court speaks
This changed on April 17, 2024, when the U.S. Supreme Court, to the surprise of many, ruled that virtually any disadvantageous change in the terms or conditions of employment can support a discrimination lawsuit. In that case, Muldrow v. City of St. Louis, a female police officer was transferred to a different position that had the same rank, salary, and benefits as before, but fewer perks. Her former role went to male police officer, and she sued for sex discrimination. She lost at every level until reaching the Supreme Court, which held that a Title VII plaintiff need only show "some" injury relating to her employment terms or conditions, and a loss of perks was enough. SLN reported on the case here:
The City of St. Louis argued that this ruling will cause employees to "flood courts with litigation in the absence of a significant-injury requirement," giving rise to visions of roadside employment lawyer billboards.
The Supreme Court justices flatly rejected this assertion, with Justice Kagan stating: "Courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions." Putting an exclamation mark on Justice Kagen's view was Justice Alito's concurring opinion, in which he confidently asserted that "[t)he predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years." This is a surprising statement from a Supreme Court Justice, in that it seems to suggest that legal standards mean little, and that it is acceptable for judges to work around the Court's new rule. Buyer's remorse, perhaps?
Time will tell, but early judicial reactions suggest that the decision will have a discernable impact on lower courts' treatment of Title VII claims, notwithstanding the view from the Supreme Court's ivory tower.
Lower courts react
In June, the Eighth Circuit Court of Appeals, relying on Muldrow, reversed a trial judge's dismissal of a seemingly doubtful religious discrimination lawsuit. The case, Cole vs. Group Health Plan, involved a physical therapist who refused to get a COVID vaccine, but was graciously granted a religious exemption by the employer to work onsite. However, she then claimed that the facility's requirement that she wear a mask at work was intended "to single out the unvaccinated and make them the subject of scorn, ridicule and embarrassment." The trial court judge, Wilhelmina Wright (a well-regarded Obama appointee), dismissed the case as meritless, stating in her opinion:
HealthPartners worked with Cole and granted a religious exemption from vaccination as a reasonable accommodation. Moreover, Cole did not suffer any reduction in pay, unpaid leave, or other loss of employment benefits as a consequence of not getting vaccinated.
In its opinion reversing Judge Wright, the Eighth Circuit made it clear that Muldrow was a sea change:
The Supreme Court recently obviated the requirement—replete in our case law...that the claimed injury be “significant,” “material,” or “serious.” After Muldrow, [the plaintiff] is only required to plead “some harm respecting an identifiable term or condition of employment.” Cole v. Group Health Plan, Inc. No. 23-3050 (June 28, 2024)
The trial court was reversed, and the case sent back for adjudication under the "some harm" standard. You can read the Eighth Circuit's opinion here:
Similar rulings are coming out regularly:
Ninth Circuit Court of Appeals:
In light of the recent decision of the Supreme Court of the United States, Muldrow v. City of St. Louis ... we vacate the district court's decision in full. Because of the Supreme Court's holding requiring that lower courts ‘use the proper Title VII standard, and not demand that [a plaintiff] demonstrate [his] transfer caused ‘significant' harm,' we remand to the district court for reconsideration and for any additional proceedings it deems appropriate.
Peccia v. Cal. Dep't of Corr. & Rehab., 2:18-cv-03049 JAM AC (E.D. Cal. Jun 18, 2024).
Eight Circuit Court of Appeals (again):
Accordingly, we reverse and remand Collins’s § 1981 discrimination and retaliation claims to the district court so that it may consider them anew in light of Muldrow. Collins v. Union Pacific Railway, No. 23-2711 (8th Cir. 2024) (July 24, 2024).
Eleventh Circuit Court of Appeals
The crux of [plaintiff's] claims is that the defendants discriminated against her when they reassigned her from a school counselor position to a kindergarten teacher position at the same school. The district court granted the defendants' motion for summary judgment on all claims and entered a final judgment for the defendants. [The Muldrow] standard differs from our pre-Muldrow caselaw, which required a Title VII plaintiff alleging an adverse employment action to establish a 'serious and material change in the terms, conditions, or privileges of employment.'.... Plaintiffs no longer need to meet that 'substantial way' burden (emphasis added). West v. Bd. of Educ., 23-10186 (11th Cir. May 24, 2024).
Southern District of New York
In its recent decision in Muldrow v. City of St. Louis, Missouri, the Supreme Court clarified that a plaintiff only needs to show “some harm” with respect to an “identifiable term or condition of employment” to establish an adverse employment action under Title VII. “What the [plaintiff] doesn't have to show. . . is that the harm incurred was ‘significant', [s]erious, or substantial.” Id. The differential treatment that Plaintiff alleges here is similar to that at issue in Muldrow... Riggs v. Akamai Techs., 1:23-CV-06463-LTS (S.D. N.Y. Jul 08, 2024).
Third Circuit Court of Appeals
Because Muldrow made clear that adverse employment action need not be serious, we will remand so that the District Court can consider in the first instance whether Peifer has asserted harms sufficient to establish 'some' employment-related harm for her prima facie case under Muldrow (emphasis added). Peifer v. Commonwealth, 23-1081 (3rd Cir. Jul 03, 2024).
Northern District of Oklahoma
Plaintiff claims that he was repeatedly denied training opportunities and staff benefits, was transferred to night-shift due to his race-despite his childcare concerns-and was subject to false and malicious rumors spread by co-workers and HR personnel. (Motion to dismiss Title VII claim denied, citing Muldrow) Mills v. Amazon.com Servs., 24-CV-0188-CVE-CDL (N.D. Okla. Jun 27, 2024)
On the other hand, at least one court found a way to "to do pretty much just what they have done for years":
Sixth Circuit Court of Appeals
Williams argues that Newbern's general conduct as her supervisor involved a plethora of adverse actions: that he excluded her from meetings, prevented her from eating at the retirement party without paying, prohibited her from driving company vehicles during work hours, and took away her office supply cabinet keys. But these actions did not affect "identifiable" conditions of her work. Muldrow, 144 S.Ct. at 974. (summary judgement affirmed). Williams v. Memphis Light, Gas & Water, 23-5616 (6th Cir. Jul 16, 2024)
Muldrow follows earlier employee-friendly decision
The Muldrow ruling follows last year's landmark religious discrimination ruling increasing employers' obligations with regard to religious accommodation requests, as reported in SLN:
On June 29, 2023, the Supreme Court changed the playing field by unanimously imposing a new standard for religious accommodation requests... Employers now must grant a religious accommodation unless they can demonstrate that the accommodation would result in “substantial increased costs in relation to the conduct of the employer’s particular business"(emphasis added). This is a drastically different standard than the duty to only incur trivial costs, and clearly contemplates "more than trivial" costs, up to the point where the cost becomes "substantial." Unfortunately, the Court gave no guidance as to the meaning of "substantial cost," and left it to be determined on a fact-intensive, case by case, analysis. This effectively means that virtually every religious accommodation request that is litigated from now on will present a jury question and will go to trial unless settled.
Read the full story here:
Bill Josey
Adapting to the new rules
Are we entering a new era of employment discrimination litigation in the United States? After Muldrow, employees certainly have greater license to accuse employers of unlawful discrimination. And drawing the line between routine employer business decisions and unlawful discrimination will be more difficult. U.S. business HR professionals, owners, executives, and managers must be aware of the new rules in order to successfully navigate the new employment law minefield.
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