U.S. Supreme Court Modifies Title VII's Adverse Action Standard
The Court's decision in Muldrow v. St. Louis requires plaintiffs to prove "some injury" respecting employment terms or conditions in discrimination cases.
On April 17, 2024, in Muldrow v. St. Louis, the U.S. Supreme Court held that in order to make out a Title VII claim, an individual need only show "some harm" to an "identifiable term or condition of employment." The decision is a departure from prior law, as most courts of appeals previously required there to be a materially adverse or significant change to an individual's terms or conditions of employment in order to state a claim under Title VII.
The underlying case involved a police officer who asserted that she had been transferred to a less prestigious division, which also changed her schedule and caused her to lose a take-home car. The district court granted the employer's summary judgment motion because the transfer did not cause a "significant" change in the employee's working conditions. The Eighth Circuit affirmed. The Supreme Court vacated the judgment, finding that there was no support in the language of Title VII for imposing a "significant" harm requirement, and that showing some harm to an identifiable term or condition is sufficient.
What are the Decision's Implications?
Muldrow has several implications. First, plaintiffs may cite Muldrow to seek to resist dismissal or summary judgment in cases where there is no materially adverse change to an individual's terms or conditions of employment. In addition to cases involving transfers, plaintiffs may also rely on Muldrow in cases involving other types of employment changes. On the other hand, in an opinion concurring in the judgment, Justice Alito predicted that "lower court judges will mind the words they use but will continue to do pretty much just what they have done for years."
Second, critics of DEI initiatives may seek to use the decision to find a basis to challenge a variety of employer programs, such as scholarships, mentorships, or training programs, that previously fell short of altering the terms, conditions, or privileges of employment under the pre-Muldrow test.
How Should Employers Respond?
Employers should review and update their anti-discrimination policies as needed and consider providing additional training to managers regarding the various types of actions that now may be sufficient to state a discrimination claim under Title VII. Employers should likewise review their DEI programs—like mentorships, affinity groups, and training programs—to assess whether those programs provide an advantage to protected groups such that they may pose some risk under Muldrow.
