In the traditional context of at-will employment, prospective changes to an employment relationship and even transfer to a new position within an organization are common. Job transfer requests can be initiated by the employee or employer. Although the at-will nature of the employment relationship affords employers the flexibility to dictate job transfers, any such change cannot be initiated for discriminatory or retaliatory purposes, or the employer could face an allegation of discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII makes it illegal to discriminate against an employee on the basis of race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin.

In a recent decision of the Supreme Court of the United States (Muldrow v. City of St. Louis, Missouri), the Court modified the long-standing requirement that plaintiffs must demonstrate significant or substantial harm to claim discrimination in the context of a job transfer. In Muldrow, the plaintiff alleged that she was transferred by a new male commander from a plainclothes job in a prestigious specialized division with substantial responsibility over priority investigations and frequent opportunities to work with police commanders to a uniformed job supervising district patrol officers. In her new position, she was less involved in high-visibility matters and primarily performed administrative work. Following her transfer, her schedule became less regular, often requiring her to work weekends, and she lost her take-home car. Key factors evidencing discriminatory intent were the new commander’s reference to the plaintiff as “Mrs.” rather than the customary “Sergeant”, and the commander’s later testimony that a male “Sergeant” was a better fit than the plaintiff because of the “very dangerous” work. The Court found that Title VII prohibits making a transfer based on sex, with the consequences described.

To make out a Title VII discrimination claim in the context of a job transfer, an employee must show some harm with respect to the terms or conditions of their employment. The Court’s decision provides that although plaintiffs need to show harm related to an identifiable term or condition of employment, they are no longer required to prove that the harm was significant or substantial. While the Court did not fully embrace the argument that any job transfer in and of itself could constitute discrimination, it emphasized that in order to be actionable under Title VII, a transfer must leave the employee worse off, albeit not significantly so.

This decision represents a shift from previous interpretations of the law, which required that employees show significant harm as a result of a transfer. When contemplating employee job transfers, employers should be thoughtful about taking such actions and aware that, depending on the facts and circumstances, transfers might be deemed adverse employment actions. Employers with questions about this recent change, including how it may impact job transfer decisions, should contact a member of our Employment and Labor team with any questions they may have.

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