A Surprise Unanimous Ruling on Title VII
On April 17, 2024, the U.S. Supreme Court issued an important ruling for employers. The bar for civil rights claims is now lower. After two lower courts ruled against an employee’s sex discrimination claim, the US Supreme Court unanimously disagreed. The plaintiff will have her claims heard by a jury of her peers.
This is a surprising development for Civil Rights lawyers, who didn’t anticipate that this Court would make it easier for an employee to prove illegal discrimination. But Law only looks boring from the outside – from the inside, it’s like the proverbial sands through the hourglass from Days of our Lives. Until it happened, I would never have predicted that this Court would unanimously rule that an employee’s burden under Title VII, the Civil Rights Act, to show “harm” is not as high as we all thought. Until now, employment lawyers have understood that a plaintiff must prove that the employer caused measurable harm to the employee, a change in both the terms and conditions of employment. Not so.
Muldrow v. City of St. Louis, 601 US ___ (2024) tells us that the harm an employee suffered does not need to be “significant.” How do we measure harm? Sergeant Muldrow, after many years of exemplary service, suffered a lateral job transfer to a less prestigious and interesting job that paid the same. She alleges that this happened because a sexist boss diminished her abilities. The U.S. Court of Appeals for the Eighth Circuit had affirmed the trial judge’s ruling that it was not sufficient that the transfer decisions affected the “conditions” of her employment. Instead, Muldrow had to also establish that the transfer imposed “a material employment disadvantage.” The Supreme Court rejected this interpretation. Instead, the employee just needs to show that she suffered some specific harm. Harm to her employment conditions can be enough.
This is a big change in Title VII world, and in my view, a surprising ruling given the current makeup of the Court, which often approaches civil rights claims with skepticism. I have sometimes turned away cases where I saw a clear violation of Title VII, but the harm element was dicey enough that I didn’t feel comfortable risking my firm’s resources to litigate the case on a contingent fee. Representing employees, that was a tough message to deliver to my client. With Muldrow, that element just got easier to prove. And because the Washington State Law Against Discrimination (the “WLAD”) uses Title VII analysis as a floor, not a ceiling, the WLAD analysis for Washingtonians’ civil rights has shifted too.
This ruling is important because an employment discrimination claim is like a recipe, and with Muldrow, “harm”, a previously rare but critical ingredient, just got easier to find. Most civil rights employment claims require three ingredients, or elements, to win. Muldrow clarified the second element. A plaintiff must persuade a jury that its more probably than not true that:
- The employer has a legal duty to its employees, like Title VII;
- That the employer breached that duty by harming an employee’s civil rights; and
- That the employer’s action, inaction, or policy caused the harm alleged.
The second ingredient, the harm alleged, has always been the meat of a claim. We look for the harm by asking:
- Did the employee suffer a concrete adverse employment action, like demotion, pay cut, discipline, termination, or severe or pervasive harassment?
- Were similarly situated employees outside her protected class treated more favorably under similar circumstances?
Until now, I understood that the harm had to be more severe than a stray remark, or more pervasive than a minor event that happened because of unique circumstances. The harm had to be quantifiable in some way, a change in terms as well as the environment itself. A plaintiff never had to prove a grievous injury, but the harm had to be enough that it would resonate with a jury as more than intangible. If my client’s job changed, I looked for unambiguous measurable harm before I could advise bringing a lawsuit against her employer.
Now, I and other employment lawyers will adjust our analysis. The landscape changed in one day. Employees can prevail on claims, otherwise meritorious, that would not have survived before Muldrow. Employers must be more vigilant to ensure that their personnel changes are well-justified, well-documented, and insulated from influence by potentially biased decision-makers. The question of which civil rights injuries merit financial compensation just got murkier under Muldrow.
