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New U.S. Supreme Court Case Casts a Wide Net on What Is Considered Discrimination

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By Tiffanny Brosnan and Marian Zapata-Rossa

Title VII, the federal standard for workplace discrimination cases, prohibits discrimination against individuals with respect to their “compensation, terms, conditions, or privileges of employment,” based on the individual’s “race, color, religion, sex or national origin.” 42 USC sec. 2000e-2(a)(1). But what constitutes a term, condition or privilege of employment for purposes of a discrimination claim? Must there be economic harm, or an ultimate employment action? The United States Supreme Court answered these questions in an opinion issued April 17, 2024, Muldrow v. City of St. Louis, et al. The plaintiff in Muldrow was a female police officer who was transferred and replaced by an officer who was male. Her rank and pay remained the same. Her responsibilities, schedule and some “perks,” however, did not. The trial court and the 8th Circuit Court of Appeals both found in favor of the police department, on the grounds that the plaintiff, Officer Muldrow, couldn’t show that the transfer caused her to suffer a “materially significant disadvantage,” in that it “did not result in a diminution to her title, salary, or benefits,” and instead had caused “only minor changes in working conditions.” Muldrow v. City of St. Louis (8th Cir. 2022) 30 F.4th 680, 688. The U.S. Supreme Court reversed, finding for the police officer. The Court held that while an employee claiming discrimination must show some harm with respect to an identifiable term or condition of employment, that harm need not be significant, explaining that Title VII does not require that there be a materially adverse or ultimate employment action. Also, when it comes to the terms and conditions that can form the basis of a discrimination claim, the Court explained that those words are not to be narrowly construed, and they cover more than the economic or tangible terms and conditions.

So what does this mean for employers? Going forward, employers should carefully consider all changes in employees’ terms and conditions of employment, including transfers (as in the Muldrow case), but potentially also other terms, such as, changes in responsibilities and “perks,” and evaluate their impact on protected classes. Plaintiff’s employment lawyers will likely look for opportunities to extend Muldrow’s reasoning to all kinds of terms and conditions of employment. The Muldrow decision, incidentally, may also lead to increased challenges to diversity, equity, and inclusion programs aimed to enhance workplace equity through efforts that focus on more intangible terms, such as training and mentoring. Employers with diversity, equity, and inclusion initiatives will want to be best positioned to dodge what could be a new wave of reverse discrimination litigation by confirming that their programs are well-designed and pass legal scrutiny under the new Muldrow standard.