A Changing Landscape in Workplace Discrimination
Beyond the Job Title
By Michael Roundy, Esq.
The U.S. Supreme Court recently changed the landscape for certain workplace discrimination claims with its decision in Muldrow v. City of St. Louis, issued in April. Employers need to be aware of the change as it could affect their internal decisions on how to address allegations of discrimination and avoid similar lawsuits.
In Muldrow, the Supreme Court held that transferring an employee to another position, even without any loss of pay or benefits, may violate the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. Although the case dealt with an internal transfer, the court’s opinion focused on changes to the terms and conditions of employment, which could implicate workplace changes far beyond transfers.
Sgt. Jatonya Muldrow worked for nine years as a plainclothes officer in the St. Louis Police Department’s Intelligence Division. When a new commander took over the division, Muldrow was transferred out, against her wishes, in favor of a male officer who the new commander said was a better fit for the division’s “very dangerous” work.
While Muldrow’s rank, pay, and benefits did not change, her new position in uniform involved different responsibilities, offered fewer perks, was less prestigious, and required weekend shifts, all of which were changes to the terms and conditions of her employment.
The District Court had dismissed Muldrow’s sex-discrimination suit on a motion for summary judgment on the grounds that the changes in the conditions of her employment did not meet a heightened standard requiring her to show a “significant” change to her responsibilities. The Eighth Circuit affirmed that decision.
The Supreme Court took up the appeal to address and resolve a circuit split over whether a Title VII discrimination claim requires a showing of “significant” harm or just some degree of harm caused by the changed working conditions. Most circuit courts, including our First Circuit, had required that a change or detrimental impact be a “material” or “significant” change to working conditions, whereas the D.C. Circuit had recently rejected such a requirement.
The Supreme Court held that the statute does not require any elevated standard of harm. On its face, Title VII makes it unlawful to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s … sex” (among other characteristics).
Michael Roundy
“Investigations handled internally may be perceived as biased and conclusory, particularly where the allegations involve upper management. Using an outside, neutral third party can counteract that perception of bias.”
The court held that this language does not require a “significant” or “serious” or “material” change, but only that Muldrow show some disadvantageous change in employment terms or conditions. Put another way, the statute prohibits “treat[ing] a person worse” because of her sex or other protected trait (race, color, religion, national origin).
A Title VII claim, therefore, must show “some harm” relating to a term or condition of employment, and need not show “significant” harm. In this case, the transfer of Muldrow to a position with less responsibility, fewer perks, less prestige, and requiring a rotating schedule including weekends met the “some harm” requirement. The Supreme Court therefore vacated the Eighth Circuit’s judgment, resurrecting Muldrow’s discrimination claims, and remanded the case for further proceedings.
The Takeaway for Employers
Outcomes like this could be avoided by employers by addressing complaints when they arise, long before they result in litigation. More and more employers have recognized the value of thorough and impartial workplace investigations conducted quickly after complaints arise. An external, third-party investigator limits the perception of bias by the complaining employee, helps ensure that manager actions are properly scrutinized, and may in some cases even help limit liability.
A credible investigation requires more than just an impartial investigator. It requires that the investigator be perceived as impartial as well. Investigations handled internally may be perceived as biased and conclusory, particularly where the allegations involve upper management. Using an outside, neutral third party can counteract that perception of bias.
As an outside investigator, I often find that employees will speak more freely with me and provide more complete and detailed information than originally reported internally to HR. With the benefit of more complete information, I am able to render better-informed findings and provide the employer the context needed for sound decisions and better workplace practices going forward.
In the context of Muldrow, a prompt and impartial investigation may also help employers avoid taking employment actions that later end up in litigation, by identifying responses and practices that should be avoided.
If an employee complains about sex discrimination, for example, and a prompt, neutral investigation confirms there may be some form of discrimination occurring, the employer will be in a position to avoid taking actions that could lead to liability — actions such as transferring the complaining employee to another position that changes the terms and conditions of his or her employment, changing the employee’s shift without his or her consent, or changing the job duties in a way that harms the employee’s chances for advancement. Each of these changes may not be considered “significant” changes, but under Muldrow, they could nonetheless result in liability for discrimination.
The employment law landscape is continuously shifting, as Muldrow v. City of St. Louis illustrates. Employers should continue to seek guidance and assistance from experienced labor and employment attorneys to ensure their policies are up to date and implemented properly and that, when complaints arise, they are investigated quickly and neutrally.
Michael Roundy a partner at the Springfield-based law firm Bulkley Richardson.
