When Is Discrimination Harmful Enough to Trigger Title VII Protections?

by Ellen Whitehair, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Does the law permit an employer to discriminate against their employees because of their gender so long as their employment conditions do not change? Put differently, is it legally actionable if an employer intentionally assigns a new mother to only night shifts or always gives men the offices without windows? Today, the answer depends on the circuit court litigants encounter. However, the Supreme Court decision in Muldrow v. City of St. Louis is expected to answer these questions with respect to lateral transfer, in addition to opening the door for future plaintiffs to argue its application outside of the transfer context.¹

This article explores the potential impact of Muldrow v. City of St. Louis on workplace discrimination claims. Part II offers an overview of Title VII of the Civil Rights Act of 1964, the McDonnell Douglas burden shifting framework, and the circuit split regarding what constitutes an “adverse employment action.” Part II will also explain the factual background and parties’ arguments in Muldrow. Part III considers how the Court’s decision in Muldrow may impact the efficacy of workplace discrimination claims. Part IV expresses optimism regarding the policy implications of Muldrow and broadening Title VII protections for employees.

II. Background

Muldrow v. City of St. Louis represents yet another step towards defining the scope of Title VII of the Civil Rights Act of 1964 (“Title VII”).² The Court consistently harps back to Title VII’s ambitious origins, but it remains to be seen if the Court will interpret its text as protecting employees from discrimination even when it does not materially alter their conditions of employment.³

A. Title VII Claims & Adverse Employment Actions

Congress passed Title VII to eliminate discrimination of employees in the workplace, so far as possible with legislation alone.⁴ Title VII, on its face, prohibits an employer from discriminating against its employers on the basis of a protected status.⁵ While the text of the statute is relatively limited, the Court has made clear that Title VII must be situated within its historical context and legislative history.⁶ Specifically, Title VII cannot be isolated from its overt purpose of ensuring equal opportunities for disadvantaged people in the labor force, particularly because employment was seen as a prerequisite to full enjoyment of equal citizenship.⁷ The Court frequently returns to the Act’s intended purpose when considering the scope of Title VII protections of employees experiencing discrimination.⁸

Sex discrimination claims under Title VII fall within two broad categories: disparate treatment and disparate impact.⁹ Disparate treatment claims require an employee demonstrate that they were subjected to discriminatory actions because of their protected status.¹⁰ Alternatively, plaintiffs asserting disparate impact claims must argue that although an employer’s policy was neutral on its face, it had discriminatory effects on a protected class.¹¹ In both cases, the plaintiff must assert a prima facie case by demonstrating: 1) their membership in a protected class, 2) their qualification for an employment opportunity, 3) that an adverse employment action was taken, and 4) that non-members were treated differently.¹² Specifically (and as relevant to Muldrow), disparate treatment cases rely on the McDonnell Douglas burden shifting framework. Under this framework, once the plaintiff meets their prima facie case, the burden shifts to the defendant-employer to articulate a “legitimate non-discriminatory reason” for their alleged action.¹³ If the employer is successful, the burden shifts back to the plaintiff to demonstrate that the reason offered is either pretextual or unworthy of credence.

B. Circuit Split on the Threshold for Adverse Employment Actions in Title VII Discrimination Transfer Claims

The Court’s decision in Muldrow should resolve the circuit split on what is required of plaintiff-employees alleging discriminatory transfers. This language falls within the “adverse employment action” prong of a plaintiff’s prima facie case. The standards adopted by the circuits vary across from plainly applying the “adverse employment action” language to requiring plaintiffs to demonstrate a tangible, material harm. Some courts have prohibited claims where the harm was de minimis,¹⁴ while others have developed language particular to transfer, terminations, and demotions.¹⁵ In recent years, circuit courts have entertained a different idea: employment actions taken because of an employer’s discriminatory intent are inherently adverse to the plaintiff for purposes of a prima facie case.¹⁶

Chambers v. District of Columbia, a recent case out of the D.C. Circuit, acknowledged the circuit split and adopted the interpretation of adverse employment action described immediately above.¹⁷ In Chambers, the plaintiff’s requests for lateral transfers were denied, while her male colleagues’ requests were granted.¹⁸ At the district court, summary judgment was awarded to Chambers’ employer because she could not prove “objective material harm.”¹⁹ A panel of the D.C. Circuit agreed with the lower court’s reasoning to the extent it was consistent with controlling precedent,²⁰ but ultimately urged the full court to hear the case en banc.²¹ Upon rehearing the case, the Court overturned the controlling case and found in favor of the plaintiff.²² The Chambers court clearly held that requiring “objectively tangible harm” or any heightened standard of harm has no basis in the text of Title VII.²³ To apply a heightened adverse employment action standard to transfers would be no more than “judicial gloss” that creates an arbitrary distinction between transfers and all other employment actions.²⁴ Notably, the Chambers court declined to decide whether a de minimis harm requirement applied to transfers because the question did not apply to the plaintiff’s set of facts.²⁵ Chambers offers a window into the argument presented by the plaintiff in Muldrow.

C. Muldrow v. City of St. Louis & “Adverse Employment Actions”

Sergeant Jatonya Clayborn Muldrow sued the St. Louis Police Department arguing that it discriminated against her because of her sex in violation of Title VII.²⁶ The lawsuit followed Muldrow’s forced transfer from her position as a Task Force Officer in the Intelligence Division to a different policing role in the Fifth District.²⁷ With this job transition, Muldrow lost her traditional schedule, her ability to dress in plain clothes, her access to FBI offices and databases, her authority to investigate criminal activity outside of city limits, and the opportunity to earn substantial overtime pay.²⁸ Despite these changes, this transfer to the Fifth District position was not characterized as a demotion on its face because she retained her job title and salary.²⁹ Muldrow requested to transfer to a different position to reclaim the privileges she enjoyed at the Intelligence Division, but her request was denied.³⁰

The district court granted the City of St. Louis’ motion for summary judgment on Muldrow’s Title VII claims.³¹ Muldrow appealed to the Eighth Circuit Court of Appeals who affirmed the lower court.³² The Supreme Court accepted certiorari review of this case and heard oral argument on December 6, 2023.³³ Importantly, the Court elected to consider only whether Title VII prohibits discriminatory job transfers that do not cause a “significant disadvantage” to workers.³⁴ Although this case narrowly discusses transfers (as a type of adverse employment action), the case raises consequential questions about the kind and degree of injury a Title VII plaintiff must suffer to raise a discrimination claim against their employer.

Muldrow’s attorneys argued before the Supreme Court that discrimination by itself constitutes the type of harm that is covered by Title VII.³⁵ More specifically, Muldrow does not bear the burden of convincing the Court that she was harmed by the discriminatory transfer.³⁶ The attorneys for Muldrow point back to the text of Title VII, stating that the statute itself does not require a showing of harm beyond being the subject of discrimination.³⁷ It merely reads that it is an unlawful employment practice… to discriminate against an employer on the basis of a protected characteristic.³⁸ Additionally, nothing in the meaning of “discrimination” requires a showing of injury beyond being subject to discrimination in the workplace.³⁹ Using the Court’s definition of discrimination articulated in Bostock v. Clayton County, Muldrow responded by stating that where “a difference in treatment or favor” is motivated by discrimination, the discrimination itself is sufficient injury.⁴⁰

Muldrow went on to argue that the “adverse employment action” element of the plaintiff’s prima facie showing also imposes no additional harm requirement.⁴¹ Specifically, Muldrow’s attorneys were asked a question to the effect of, “[i]f there is no added injury requirement, wouldn’t all adverse employment actions become actionable?”⁴² To this question, Muldrow argued in the negative.⁴³ Muldrow’s counsel argued that non-actionable, de minimis decisions are made in workplaces every day.⁴⁴ These actions do not invoke Title VII protection just because they change an employee’s terms, conditions, or privileges of employment.⁴⁵ However, if such a change is imposed because of a person’s protected status, then the employer’s discriminatory motivation invokes Title VII.⁴⁶ This stance excludes non-discriminatory workplace decisions that do not affect an employee’s terms, conditions, or privileges of employment from legal cognizance.⁴⁷

Lastly, Muldrow’s counsel reminded the Court that frivolous claims are largely weeded out by Article III standing requirements, the remaining prima facie elements of Title VII, and the limited damages available where additional harm cannot be proven.⁴⁸ Additionally, employers still are able to raise the defenses of a bona fide occupational qualification or a business necessity (except in the case of race).⁴⁹

The City of St. Louis, the respondent, disagreed and argued that Title VII requires a showing of material, objective harm to be actionable.⁵⁰ The City focused heavily on Title VII’s language, emphasizing “discrimination against [an employee on the basis of a protected status]” means an additional showing of injury is required.⁵¹ Without drawing a clear line between injury that is de minimis versus material, the City came back to the idea that the “discrimination against” language means that Title VII requires a plaintiff to show they suffered injury as a result of discriminatory treatment.⁵²

The City highlighted the risks of widening the scope of Title VII to the point that it becomes a “civility code.”⁵³ In its view, requiring a threshold of harm would prevent the Court from becoming the “super personnel department” for employees, in addition to falling victim to “the trifle principle.”⁵⁴ The Court questioned the City at length about whether they concede that discrimination, specifically the stigmatic injury of discrimination, constitutes harm to an employee.⁵⁵ The City answered that unless that harm is objective and material, it is not actionable because it would leave just “[the plaintiff’s] personal preferences” at the heart of the offense.⁵⁶

III. Discussion

The arguments in Muldrow v. St. Louis concentrate on the threshold question of whether Title VII recognizes discrimination against employees as harmful enough to be actionable. This argument has found success in the D.C. Circuit and has potential to be adopted by the Supreme Court. Importantly, both Chambers and Muldrow specifically refer to lateral transfers. However, this argument can be meaningfully applied to all scenarios where an employee suffers a discriminatory action that does not change their conditions of employment. If adopted by the Court, this argument opens the door for employees that experience workplace discrimination that falls short of termination, demotion, or a compensation changes. Additionally, Muldrow’s reasoning would make it easier for underprivileged and intersectional employees to recover without the often complicated task of connecting harm suffered to a single identity trait.

For Title VII to remain faithful to its original purpose, discrimination should be considered injurious in its own right. Congress sought to weed out discrimination “root and branch” with the passage of Title VII and in doing so, implicitly identified discrimination as the chief evil the law was intended to eradicate.⁵⁷ Notably, Title VII was intentionally crafted broadly to encompass an array of discriminatory behavior that an employee may experience in the workplace. Title VII’s drafting is instructive because it signals to the Court that eliminating discrimination in the workplace takes priority over “checking boxes” to legitimize harm suffered.

Title VII has consistently fallen short of protecting employees who suffer discrimination because of their intersectional identities. This is often because those employees cannot present the entire picture of their discriminatory encounters to the court because of the categories Title VII requires. For example, a plaintiff who is discriminated against because she is a Black woman is forced to categorize her harm as either race or sex discrimination under Title VII.⁵⁸ As a result of the categorization, that plaintiff will then have to tie the adverse employment action she experienced to either her blackness or her womanhood, when often, it falls between the two. In cases like these, plaintiffs’ full identities are erased in favor of dissecting and dividing the harm they experienced. Additionally, it means the court never can fully appreciate how the adverse employment action reflects the identity-specific discrimination the plaintiff faces.

Muldrow can meaningfully address the erasure problem of intersectional plaintiff’s harm and make it easier for these plaintiffs to recover. Where discrimination alone is understood as harmful to the plaintiff, that plaintiff is relieved of the challenge of showing that a particular adverse employment action connects to a particular kind of harm. By way of example, consider the following question: does Title VII protect a transgender employee that is moved to the windowless office by the restroom because his supervisor is transphobic? While the fact that his office is inconveniently located and aesthetically unappealing is one thing, it is hardly the worst part of what happened to the employee, and it is hard to tie to transphobia absent explicit statements from his employer. Muldrow could help this employee because it would allow a court to acknowledge that this employee was hurt by discrimination in a way that far exceeds the frustration of being assigned to a bad office.

Muldrow would permit all plaintiffs to memorialize the harm they experience without deducing it to its indirect consequences. There is immense value in allowing courts to memorialize harm experienced accurately, especially where employees facing discrimination are so often forced to minimize their own experiences in the workplace.

IV. Conclusion

Title VII was intended to eradicate discriminatory behavior of protected employees in the workplace. The text of Title VII necessarily assumes that discriminatory behavior is harmful in its own right, without additional requirements regarding the extent of plaintiffs’ injuries. If the Court accepts the reasoning of Muldrow, it opens the door to making Title VII a meaningful tool against employer misconduct and it will make it easier for plaintiffs with intersectional disadvantages to recover.

Cover Photo by Zach Camp on Unsplash

Ellen Whitehair

References

1
See generally Muldrow v. City of St. Louis, 30 F.4th 680, 684-85 (8th Cir. 2022).
2
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-7 (1964).
3
The language “conditions of employment” is found in Section 703(a)(l) of Title VII and further defined in Section CM-613.1(a). Section 613 reads in part, “In accordance with Congressional intent, the above language is to be read in the broadest possible terms… The phrase ‘terms, conditions, and privileges’ has come to include a wide range of activities or practices which occur in the workplace.”
4
United Steelworkers v. Weber, 443 U.S. 193, 204 (1979).
5
At the time the Civil Rights Act of 1964 was passed, the protected statuses were race, color, religion, and national origin. Now, with the passage of the Civil Rights Act of 1991 and other amendments, sex, age, and disability were added to the list. See Timeline of Important EEOC Events, U.S. Equal Emp. Opportunity Comm’m, https://www.eeoc.gov/youth/timeline-important-eeoc-events (last visited Mar. 26, 2023).
6
42 U.S.C. § 2000e-2(a). See also United Steelworkers, 43 U.S. at 201.
7
The Weber Court refers to the connection between employment and citizenship by reciting President Kennedy’s message to Congress when introducing the Act. To President Kennedy and to the Weber Court, equal employment opportunity would permit people of color to participate in the economy, a necessary step to full enjoyment of citizenship. Importantly, Title VII was created with the primary intention of creating racial equity in the workplace. Id. at 202-03.
8
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
9
Id. at 804.
10
See generally Jamie Bishop, et al., Sex Discrimination Claims Under Title VII of The Civil Rights Act of 1964, 22 Georgetown J. of Gender & the L., 369, 371 (2021).
11
Id.
12
See McDonnell Douglas Corp., 411 U.S. at 802 (specifically dealing with a disparate treatment claim on the basis of sex; the prima facie elements can vary slightly in their wording, but all follow this basic structure).
13
Id.
14
Threat v. City of Cleveland, 6 F.4th 672, 679 (6th Cir. 2021) (using the famous phrase that “the law does not concern itself about trifles”); See also De Minimus, Black’s L. Dictionary (2nd Ed. 1995) (defining “De minimis” as “a small or trifle issue”).
15
Maddie Fleming, Discriminatory Employment Transfers: The New Circuit Split, U. Chi. Bus. L. Rev. (Mar. 2022), https://businesslawreview.uchicago.edu/print-archive/discriminatory-employment-transfers-new-circuit-split.
16
Id.
17
See generally Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022).
18
Id. at 873.
19
Id.
20
See generally Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999).
21
Chambers, 35 F.4th at 873.
22
Id.
23
Id. at 875.
24
Id.
25
Id.
26
Muldrow v. City of St. Louis, 30 F.4th 680, 684-85 (8th Cir. 2022) (including were relevant Missouri state law claims in addition to a Title VII retaliation claim).
27
Id.
28
Id. at 685. In her 5th District role, Muldrow was required to “work a rotating schedule including weekends, wear a police uniform, drive a marked police vehicle, and work within a controlled patrol area.” Additionally, she was “no longer eligible for the FBI’s $17,500 annual overtime pay structure, although other overtime pay options were available to her.”
29
Brief for Petitioner at 3-4, Muldrow v. City of St. Louis, 30 F.4th 680 (2023) (No. 22-193).
30
Id. at 3.
31
Id. at 9-10.
32
Id. at 11.
33
Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022), cert granted, 143 S.Ct. 2686 (2023) (No. 22-193, 2022 Term).
34
Id.
35
See generally Oral Argument, Muldrow v. City of St. Louis, 30 F.4th 680 (2023) (No. 20-2975), https://www.c-span.org/video/?531894-1/muldrow-v-st-louis-oral-argument.
36
Id.
37
Id. at 1:32-1:42.
38
Id. at 0:27-0:45.
39
Id. at 1:32-1:42.
40
Oral Argument at 2:34-2:50. See also Id. at 4:29. Bostock v. Clayton County, 590 U.S. 644 (2020) (No. 17-1618), https://www.supremecourt.gov/oral_arguments/audio/2019/17-1618. Plaintiff’s counsel stated that different treatment is almost always injurious because discrimination itself is injurious. Oral Argument at 6:27-8:28.
41
Oral Argument at 35:32, Muldrow v. City of St. Louis, 30 F.4th 680 (2023).
42
Id. at 37:10.
43
Id.
44
Oral Argument at 10:10, Muldrow v. City of St. Louis, 30 F.4th 680 (2023).
45
Id.
46
Id. Plaintiff’s counsel argued where discrimination plays a role in workplace treatment, that issue becomes non-trivial and worth Title VII protection.
47
Id.
48
Id. at 35:40-3:38.
49
Id. at 39:48-40:07.
50
Id. at 1:01:39.
51
Id. at 1:01:26.
52
Id. at 1:1:44.
53
Id. at 1:02:00-1:02:23.
54
Id. at 1:27:04.
55
Id. at 1:09:35.
56
Id. at 1:18:12.
57
Id. at 26:36. This phrase was used by Justice Gorsuch in oral argument for Muldrow v. City of St. Louis.
58
Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, Univ. of Chicago Legal Forum, Vol. 1989 Issue 1, 145-46 (1989). While courts have made some attempt to acknowledge intersectionality in the discrimination context, it is far from where it should be. This tension is most obvious where employees bring claims against supervisors that share identity traits with them (EX: a Black woman and a white woman). Courts often fail to consider that whole new assumptions and discriminatory stereotypes are created where race, gender, sexuality, ability, etc. combine. Seeing this intersectionality is an important part of fully seeing the harm marginalized communities experience in the workplace.