The U.S. Supreme Court heard a case on Dec. 6 that will determine whether involuntary job transfers can constitute discrimination in some circumstances.
The court focused on whether tangible harm is required in order to prove discrimination. Examples of harm would be getting less pay, less promotion potential, lower rank or unfavorable hours.
The justices “appeared to lean toward a finding that Title VII covers a broader swath of discrimination, including discrimination that does not carry an obvious harm,” Martin Bell, an attorney with Simpson Thacher in New York City, told SHRM Online.
It’s unclear when the court will issue an opinion in this case.
Under Title VII of the Civil Rights Act of 1964, employers cannot discriminate against workers with respect to their compensation, terms, conditions or privileges of employment because of their race, color, sex, religion 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 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 supervised police officers on patrol, was required to wear a police uniform and worked a rotating schedule, including weekends. She earned the same salary but was no longer eligible for the FBI’s $17,500 annual overtime pay.
The sergeant sued the city, alleging gender discrimination and retaliation under federal and state law because the city denied 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.
Did Harm Occur?
The law requires the plaintiff to point to a significant material harm in order to prove employment discrimination, said Robert Loeb, an attorney with Orrick in Washington, D.C., representing St. Louis in this case.
“The negative impact of the conditions must be looked at through an objective lens, not based on personal sensitivities, not based on personal preferences,” he said. “This court has consistently read Title VII not to speak to minor slights or personal preferences of the employee or job actions with no significant harm.”
However, Brian Wolfman, an attorney and director of Georgetown Law School’s Appellate Courts Immersion Clinic in Washington, D.C., representing the plaintiff, argued that it’s enough to show disparate treatment without any additional harm. “In the vast majority of circumstances, differential treatment and worse treatment are going to be the same thing,” he said.
“Being denied equal treatment because of a protected characteristic gives rise to an actionable harm. That’s all the statute requires,” said Aimee Brown, assistant to the U.S. Solicitor General.
In this case, the transfer qualifies as sex discrimination because the plaintiff was treated differently than a male employee in the same circumstances, Wolfman said.
Justice Ketanji Brown Jackson expressed concerns about making plaintiffs show material injury in order to prove discrimination. She emphasized that the claims must be related to a change in the terms, conditions or privileges of employment, and plaintiffs won’t receive damages if they don’t show material harm for which they should be compensated.
Some justices expressed concerns that trivial complaints about minor workplace differences, like office paint color, could end up in cases, if no material harm has to be proved.
“Although disparate treatment based on one of these characteristics is wrong,” Justice Samuel Alito Jr. said, “there should be some sort of threshold before it gets into court, and that’s where the de minimis idea comes from.”
Certain gender-based distinctions in bathrooms, dress codes or grooming standards could be reasonably viewed as innocuous and would not be actionable, Brown agreed.
However, any job transfer on the basis of a protected characteristic is necessarily going to be more than a de minimis injury, Brown said. “Discrimination in and of itself seems hard to characterize as trifling or insignificant or hardly worthy of notice,” she added.
Some things that happen in the workplace are more social than work-related, and those could not constitute discrimination because they are not related to the terms, conditions or privileges of employment, said Justice Brett Kavanaugh.
If the court rules in favor of the plaintiff, “many more cases involving employer decisions would survive early motions and proceed to litigation on the question of whether the decision was actually motivated by the employee’s protected characteristic,” Lindsay Burke, an attorney with Covington in Washington, D.C., told SHRM Online. “Regardless of the outcome of this case, Title VII claims will still require proof of discriminatory intent by the employer.”