Legal Update: Employment Discrimination Happens When "Harm" Is Imposed Due to Protected Status

The U.S. Supreme Court has been changing the legal landscape of employment law, slightly and slowly in favor of employee rights.  These changes include clarifying that illegal discrimination can occur when "harm" happens at work, which means an employee can seek redress if "harm" or "some injury" has been inflicted by the employer against them, in Muldrow v. City of St. Louis, Missouri, Slip Op No. 22-193, 601 U.S. ___ (2024).

In Muldrow, Sergeant Muldrow had been an accomplished plain clothes officer in the police intelligence division for about nine years.  During this time, she had led a gun-crime subunit, acted in laison with the FBI, and investigated other sophisticated criminal incidents. However, after a change in management, the new head-honcho arranged for Sergeant Muldrow to transfer out, allegedly because she was female, replacing her with a male police officer.  Sergeant Muldrow was sent to neigborhood policing.  While Sergeant Muldrow did not lose any income, she lost control of her schedule, loss of a work car that she could take home, and loss of her FBI connections and related opportunities.

The U.S. Supreme Court clarified, in the above decision, that the sergeant experienced enough harm to constitute an adverse employment action to support a lawsuit alleging gender discrimination.  A federal court could not dismissed the case because it was not "significant" enough.  Muldrow, Slip Op. at 6.  The standard is "harm."  Id.  A trial court cannot require "a significant employment disadvantage" occur, but rather, the question is: Has "some injury" occurred?  Slip Op. at 10.

The Supreme Court also drew a distinction between discrimination actions that protect employees from harmful treatment based on "status," and retaliation claims where the action must be sufficient to "“dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.”  Muldrow, Slip Op. at 9 (quoting Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006)). 

Sidebar: Retaliation

It is worth noting that illegal retaliation occurs where an employee engages in "protective activity" of opposing discrimination at work, seeking redress due to discrimination, or complaining about discrimination in good faith, but experiences blow back, which then constitutes illegal retaliation.

In Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006), the employee involved was suspended for 37 days without pay. This economic loss sometimes is a focus on determining what might be a mininum retaliatory action compared to some actions at work that do not meet the standard.  Overall, the U.S. Supreme Court in Muldrow commands federal courts to look beyond economic injury in discrimination cases.  It does not, as a matter of holding, apply beyond discrimination.  Still, it seems to encourage a wider lens, which also may be due in retaliation matters.  How it plays out remains to be seen.

Conclusion:

The Supreme Court has clarified that illegal discrimination occurs under Title VII of The 1964 Civil Rights Act when "harm" or "some injury" is inflicted upon an employee. This said, Muldrow also reminds us that the harm should be tangible and make common sense.  Sergeant Muldrow went from special investigations to supervising "neighborhood patrol officers."  Slip Op. at 2.  She lost control of her schedule and other noticeable benefits like use of a car.  It's not loss of a corner office, for instance, or just loss of perks.

In sum, the U.S. Supreme Court clarified in Muldrow v. City of St. Louis, Missouri that discrimination claims by employees can proceed at court where "harm" is alleged to have occurred based on a protected status.