In a case followed closely in the education community, the U.S. Supreme Court on Wednesday ruled that employees challenging a transfer under the main federal job-discrimination law must show that change causes some harm in term or condition of employment but that the harm need not be 鈥渟ignificant.鈥�
The ruling was largely a victory for employees and civil rights groups, who had urged the court to reject a standard requiring a significant disadvantage in the transferred employee鈥檚 new job assignment to be the basis for a discrimination complaint under Title VII of the Civil Rights Act of 1964.
It was a defeat for employers and their advocates, including several school groups, who warned that removing the significance requirement could impinge on the many transfer decisions school administrators must make in deploying a typically large workforce.
鈥淭o make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment,鈥� Justice Elena Kagan wrote for the court in . 鈥淲hat the transferee does not have to show, according to the relevant text, is that the harm incurred was 鈥榮ignificant.鈥� Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.鈥�
A police sergeant鈥檚 case has parallel examples in education
Five other members of the court signed Kagan鈥檚 opinion: Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Neil M. Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson. Justices Clarence Thomas, Samuel A. Alito Jr., and Brett M. Kavanaugh all concurred with the outcome, but Thomas and Alito wrote opinions that almost read like dissents, and Kavanaugh wrote a separate opinion that would have gone further than the majority in support of employees.
The decision revived the Title VII sex-discrimination suit of St. Louis police Sgt. Jatonya Muldrow, who worked nine years in the intelligence division and had once led the gun-crimes unit. In 2017, a new, male supervisor transferred her to a local police district, where she supervised routine patrol and investigative matters and once again had to wear a uniform instead of plainclothes.
The new intelligence-division leader allegedly referred to the work Muldrow had been involved in as 鈥渧ery dangerous,鈥� and he replaced her with a male officer and transferred two other women out of the division. The supervisor also referred to her as 鈥淢rs.鈥� rather than 鈥淪ergeant,鈥� as he addressed men of that rank.
The U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled that Muldrow鈥檚 transfer was not an adverse employment action because it 鈥渄id not result in a diminution to her title, salary, or benefits鈥� or 鈥渁 significant change in working conditions or responsibilities.鈥� The court was one of several federal appeals courts to apply some form of the significance standard in job transfer cases.
Kagan cited some of those decisions, including , in Denver, which adopted a significant standard in the case of a teacher who alleged sex discrimination in her transfer to a less desirable (to her) school.
鈥淭o demand 鈥榮ignificance鈥� is to add words鈥攁nd significant words, as it were鈥攖o the statute Congress enacted,鈥� Kagan said. 鈥淚t is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written.鈥�
And such a standard can make a real difference, she said, as 鈥渕any forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.)鈥�
She cited several examples from cases of employees whose bias claims about their transfers were rejected under a significance standard. They included, Kagan said, 鈥渁 school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not 鈥榮ignificant.鈥欌��
That referred to , a 2021 decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that ruled against a Black middle school principal who challenged her transfer to a central-office position as being motivated by racial bias. The appellate court affirmed a district judge鈥檚 ruling that despite the principal鈥檚 view of the transfer as a demotion that decreased her chances for advancement, other principals had been moved to central-office positions without any loss of prestige.
Kagan said in a footnote that the principal鈥檚 case she cited was an example of a claim that failed under the significance test used by the ruling appeals court but would 鈥渟ucceed鈥� under the Supreme Court鈥檚 new standard.
In fact, school employment cases came up frequently in the briefs filed in the case, including ones asking whether being transferred to teach 7th grade instead of 3rd grade would be a materially adverse change (an appeals court said it wasn鈥檛) or whether a school security guard鈥檚 movement from a high school to a middle school, with more outdoor work and less opportunity for overtime, met the significant transfer test (another appeals court said it did not).
鈥淓ducational administrators, particularly in large urban school districts, regularly must make a wide range of teacher and support staff assignments and other personnel management decisions to meet the needs of constantly changing student populations,鈥� said a filed in support of the significance standard by the National School Boards Association; AASA, the School Superintendents鈥� Association; and the National Association of School Business Officials International.
Francisco M. Negr贸n Jr., the founder and CEO of K12 Counsel, an education law advocacy firm in Washington, said the decision will be worrisome for school districts.
鈥淭his will make it more difficult for districts to be nimble鈥� in their deployment of teachers, administrators, bus drivers, and other personnel, he said.
鈥淭he majority was quite expansive in its opinion,鈥� said Negr贸n, who was the longtime general counsel of NSBA until late last year and had helped write the school groups鈥� brief. 鈥淜agan talks not just about job locations and schedules but also perks. School districts are going to have to be more careful about what constitutes terms and conditions of employment.鈥�
They may need to make clear to new hires that they work for the district and are subject to redeployment based on the district鈥檚 needs. But even then, he added, 鈥淚 think there are more questions this case raises than it answers, and those are going to be the subject of future litigation.鈥�
Ming-Qi Chu, the deputy director of the American Civil Liberties Union鈥檚 Women鈥檚 Rights Project, said the decision 鈥渋s an enormous win for workers.鈥�
The 鈥渉eightened standard contradicts the statute鈥檚 text and undermines Congress鈥� plan of eliminating discrimination in employment in passing Title VII,鈥� she said.
One justice calls majority opinion 鈥榰nhelpful鈥�
Muldrow鈥檚 case was revived but sent back to lower courts for consideration of certain outstanding questions about some of the evidence in her case. All members of the court agreed with that outcome.
Thomas, in his opinion, said he believed the proper standard was not 鈥渟ome harm鈥� but that an employee challenging a transfer must show harm that is 鈥渕ore than trifling.鈥�
鈥淚n other words, a plaintiff must have suffered an actual disadvantage as compared to minor changes,鈥� he said.
Thomas said Muldrow 鈥渇ailed to prove that there was any nontrifling change in her job鈥檚 prestige鈥� and that the 8th Circuit was probably correct to reject her claim, but he grudgingly went along with the judgment that will require the lower courts to give a fresh look at some aspects of her case.
Alito was more critical of Kagan鈥檚 opinion, even as he also joined the outcome.
鈥淚 do not join the court鈥檚 unhelpful opinion,鈥� Alito said. 鈥淔or decades, dozens of lower court judges, with a wealth of experience handling Title VII cases, have held that not every unwanted employment experience affects an employee鈥檚 鈥榯erms鈥� or 鈥榗onditions鈥� of employment.鈥�
As to Kagan鈥檚 guidance that plaintiffs must show some harm but that it not be significant, 鈥淚 have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.鈥�
鈥淲e do not typically say that we were harmed or injured by every unwanted experience,鈥� he added. 鈥淭he predictable result of today鈥檚 decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years.鈥�
Kavanaugh tacked in the opposite direction, saying in his opinion that he did not think that 鈥渟ome harm鈥� was necessary for a successful claim if the transfer was made on the basis of the characteristics covered by Title VII鈥攖he employee鈥檚 race, color, religion, sex, or national origin.
He said, 鈥淪uppose that an employer says to an employee in the Columbus (Ohio) office: 鈥榃e are transferring you to the Cincinnati office because you are black. But your compensation will not change.鈥� Does that violate Title VII? Of course it does.鈥�
The discrimination is the harm, Kavanaugh said, and a transfer is by definition a change in terms or conditions of employment. Still, he said, the new 鈥渟ome harm鈥� requirement is a low bar for plaintiffs to meet.
Anyone who has been transferred based on a characteristic covered by Title VII, Kavanaugh said, 鈥渟hould easily be able to show some additional harm鈥攚hether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.鈥�
