The U.S. Supreme Court will hear a case that will clarify whether a mandatory job transfer can be considered a discriminatory employment action under federal law.
On June 30, the Supreme Court agreed to hear Muldrow v. City of St. Louis. It hasn’t yet set a date for oral arguments, but the court’s next term will begin on Oct. 2.
The court will focus on whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in all terms, conditions or privileges of employment, or whether the law’s reach is limited to employer decisions that cause materially significant disadvantages for employees.
The court’s decision to hear the case should provide clarity for employers, “given the recent evolution in the case law interpreting Title VII in the context of cases that do not involve material or significant adverse employment actions,” said Jonathan O’Connell, an attorney with Odin, Feldman & Pittleman in Reston, Va. “In recent years, there’s a trend within the circuit courts of re-examining the language of Title VII and finding that there is, in fact, no materiality requirement built into the statute.”
If the Supreme Court decides that Title VII protects more than just significant or material employment actions, there will likely be a spike in the number of charges filed with the U.S. Equal Employment Opportunity Commission and local Fair Employment Practice Agencies, O’Connell predicted.
“For now, HR and employers should stay the course. Whichever way the court goes, this will likely be a narrow holding applicable only to specific factual circumstances. Employees must still meet their burden of proof” to show employment discrimination, said Stephanie Adler-Paindiris, an attorney with Jackson Lewis in Orlando, Fla.
Background
Under Title VII, employers cannot discriminate against workers with respect to their compensation, terms, conditions or privileges of employment because of their race, color, religion, sex or national origin. Plaintiffs alleging discrimination must show they suffered an adverse employment action, such as being fired, suspended or demoted with less pay or fewer benefits.
In June 2017, a sergeant with the St. Louis Police Department was transferred from her position in the department’s intelligence division, where she worked on public corruption and human trafficking cases, headed a gun crimes intelligence unit, oversaw a gang unit, and served as a task force officer for the Federal Bureau of Investigation’s (FBI) human trafficking unit. She worked a traditional 9-to-5 schedule, had permission to work in plain clothes, had access to an unmarked FBI vehicle and had the opportunity to earn up to $17,500 in annual overtime pay from the FBI, according to court documents.
Her new position was with the city’s Fifth District, where she was responsible for supervising police officers on patrol; reviewing and approving arrests; and responding to calls for service for crimes, such as homicides, robberies, assaults and home invasions. She earned the same salary but was no longer eligible for the FBI’s $17,500 annual overtime pay, although other overtime opportunities were available to her. She was required to wear a police uniform and work a rotating schedule, including weekends. She applied twice to be transferred to the Second District and to a sergeant investigator position in the internal affairs division. While her application for the latter job was pending, she was transferred back into the intelligence division and her FBI privileges were reinstated.
The sergeant filed a discrimination charge with the Missouri Commission on Human Rights and sued in state court, alleging gender discrimination and retaliation under federal and state law because the city didn’t approve her requests to transfer from the Fifth District.
A federal district court ruled in favor of the city, and the 8th U.S. Circuit Court of Appeals agreed. The plaintiff didn’t suffer an adverse employment action because she couldn’t point to any specific harm the city did to her by not transferring her to her preferred position, the appeals court concluded.
“To be materially adverse, retaliation cannot be trivial. It must produce some injury or harm,” the appeals court stated. If a worker isn’t allowed to maintain their preferred schedule, that alone does not meet the significant harm standard, the appeals court noted.
Denial of a sought-after transfer may constitute an adverse employment action if the transfer would result in a change in pay, rank or material working conditions, the appeals court stated. To determine whether something meets the standard, courts can consider factors like a change in supervisory duties, prestige, schedule, hours or promotion potential.
Mandatory vs. Voluntary Transfers
If the employer can show that a transfer was voluntary, then the employee cannot prove discrimination. A job transfer is considered mandatory “if the alternative is to terminate the employment relationship,” Adler-Paindiris said. “If an employer tells an employee that accepting a transfer to a new role, department or location is a condition of ongoing employment, and is basically telling the employee to take it or leave it, that is a mandatory transfer.”
She added, “A voluntary transfer would be when an employer posts an internal opening for a position in a different department or tells a group of employees that certain people are needed for different roles and asks if anyone is willing to accept that change. Often a voluntary transfer would come with an enticement, such as a shift differential, although this is not a requirement.”
Employers should document the decision-making process, O’Connell said. “In instances in which an employee truly has a choice, employers may consider developing or adding language to transfer forms, in which employees sign and acknowledge that the decision to move is indeed voluntary and not required as a condition of continued employment. Such documentation will assist in defending future claims that the transfer decision was against their will and based on discriminatory motives.”
