Earlier today, the U.S. Supreme Court unanimously held that a plaintiff may sue under Title VII for an alleged discriminatory transfer even when the transfer does not result in a change in title, salary, or benefits. The case—Muldrow v. City of St. Louis—was filed by a police sergeant who alleged that she was transferred out of a specialized unit because she is a woman. The lower courts, including the U.S. Court of Appeals for the Eighth Circuit, had held that the transfer was not actionable because the plaintiff’s new position did not constitute a “materially significant disadvantage” when compared to her previous position.

The Eighth Circuit’s articulation of a “materially significant” standard for evaluating whether a transfer constituted an adverse employment action was consistent with similar standards applied by six other Circuit courts covering a significant part of the country. In Muldrow, the Supreme Court rejected the approach in those Circuits and held that the text of Title VII did not support a heightened standard.

The Court stopped short, however, of holding that a discriminatory transfer automatically satisfied Title VII (although Justice Kavanaugh’s concurring opinion suggests that the Court should have done so). Instead, going forward, courts will evaluate alleged discriminatory transfers for whether they caused any “‘disadvantageous’ change in an employment term or condition.” Put another way, plaintiffs alleging a discriminatory transfer will have to show that the transfer left the plaintiff “worse off, but need not have left [plaintiff] significantly so.” Future litigation will shape what constitutes sufficient harm to leave a plaintiff “worse off.”

Employers should be mindful of the new standard announced by the Court when considering employee transfers and when evaluating the merits of ongoing litigation. The extent to which this decision will lead to an increase in litigation remains to be seen. The decision will, however, undoubtedly make it easier for employees to survive motion practice and succeed on claims that include a discriminatory transfer allegation.

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Evan S. Weiss

Evan is the Managing Partner of the Firm’s New York City office, spearheading the Firm’s handling of employment matters throughout the northeast. Evan has achieved victories for his clients both in the trial court and on appeal, and he has extensive experience advising…

Evan is the Managing Partner of the Firm’s New York City office, spearheading the Firm’s handling of employment matters throughout the northeast. Evan has achieved victories for his clients both in the trial court and on appeal, and he has extensive experience advising clients on how to navigate lawsuits, including class and collective actions; comply with federal, state, and local employment laws; manage restrictive covenant agreements and disputes; and effectively handle union negotiations, arbitrations, and related litigation.

Evan graduated <i>magna cum laude</i> from Yeshiva University’s Cardozo School of Law in New York City. He earned his bachelor’s degree in Broadcast Journalism and History from Syracuse University. Before joining MHS, Evan was a law clerk for both the Honorable Gerrilyn G. Brill and the Honorable John K. Larkins, III, of the Northern District of Georgia, as well as a Staff Attorney for the U.S. Court of Appeals for the Eleventh Circuit based in Atlanta. Originally from Long Island, Evan is excited to be back in New York following his time living in Atlanta. In his free time, Evan can be found cheering on the hometown Rangers and Mets or exploring the city’s many art museums (the Metropolitan Museum of Art is his favorite).