In employment discrimination cases, one of the elements for certain discrimination and retaliation claims is that the employee suffered an “adverse employment action.” For example, if an employee makes a protected complaint and the company retaliates against the employee, that retaliation will take the form of an adverse employment action, such as termination, suspension, or demotion. Or, in discrimination cases, where an employee is treated differently because of age, race, sex, national origin, disability, or religion, an adverse employment decision targeted at such an employee could be a failure to hire or failure to promote.
I often meet with employees who have engaged in protected conduct or are part of a protected category of employees and have also suffered some sort of mistreatment by the company or management. But that does not always mean that the employee has a legal claim. First, we have to prove that any of the mistreatment was because of their complaint or status (or at least motivated by complaint or status in some way).
Second, we have to prove that the conduct of the company towards the employee meets the requirement for an adverse employment action. Some forms of discipline, for example, won’t meet that standard. If an employee makes a protected report and then is immediately put on a Performance Improvement Plan (PIP), that might indicate that the company has begun trying to build a case and establish a paper record to support a future termination. But the PIP is not automatically an adverse employment action. However, if the PIP is accompanied by a suspension with loss of pay, benefits, or seniority, then that might be enough to allege an adverse employment action.
But what about a lateral transfer in position that does not result in a loss of pay or benefits? Is that an adverse employment action? Maybe not by itself.
But what if you can prove that the lateral transfer was motivated by an illegal reason, such as race, sex, or pregnancy? What if the company wanted to transfer a woman out of a role so they could hire a man for that same job, but the transfer for the woman did not cause a loss of pay?
That’s the scenario that the U.S. Supreme Court is considering right now. In Muldrow v. St. Louis, Jatonya Muldrow was a sergeant with the St. Louis Police Department who filed a lawsuit against the department after she was transferred from her position in the Intelligence Division over to a patrol division just because her employer wanted to hire a man for her role. The 8th Circuit Court of Appeals held that Muldrow’s transfer had not resulted in a significant disadvantage to her, and thus ruled in favor of the police department. Muldrow appealed to the U.S. Supreme, which held oral arguments on December 6, 2023. The Court will likely rule before June 2024.
Muldrow argues that any sort of employment decision that is motivated by unlawful discriminatory motive violates Title VII, as it is denigrating and demeaning. The Department argues that there must be some sort of material objective harm before Title VII is violated.
After reviewing the oral argument, it would appear that the Court is likely to rule in favor of Muldrow, but the Court very well may limit its holding just to transfer decisions instead of all workplace decisions. I’ll provide an update on this case once the Court’s opinion is announced. As ever, if you have any questions about whether your company is retaliating against you or making decisions based on your age, race, sex, or otherwise, please feel free to reach out to our office today for a consultation.
