7 minute read | April.25.2024
The U. S. Supreme Court has clarified that a plaintiff must show harm in addition to improper discriminatory intent when bringing a change-of-terms-or-conditions-of-employment claim under Title VII’s anti-discrimination provision.
The decision largely represents a win for employers, especially those looking for clarity, including with respect to legal challenges to their DEI programs. The Supreme Court’s insistence on some harm in the terms or conditions of employment should ease concerns that the Court would make it easier for plaintiffs and activists to challenge DEI programs, even where litigants have suffered no actual harm themselves.
Justice Kagan authored the majority opinion in Muldrow v. City of St. Louis, joined by Chief Justice Roberts and Justices Sotomayor, Gorsuch, Barrett, and Jackson. The Court held that, in addition to showing an improper discriminatory intent, a Title VII discrimination plaintiff “must show some harm respecting an identifiable term or condition of employment.”
The need for some workplace-related harm sets real limits on Title VII discrimination lawsuits that can go forward. Notably, the petitioner and the Department of Justice argued there was no need to prove harm because, in their view, harm can always be presumed if an employee asserts some change in job conditions was based on an employee’s protected characteristic. That position was defeated by a decisive 8-1 margin.
The case—argued in the Supreme Court by Orrick partner Bob Loeb on behalf of the City of St. Louis—arose from the St. Louis Police Department’s transfer of a female sergeant from the Department’s Intelligence Division to its Fifth District.
The petitioner retained the same rank and pay and a supervisory role, but she claimed she lost prestige and networking opportunities and that her job responsibilities shifted to primarily administrative tasks. Additionally, after the transfer, the FBI revoked credentials it had granted her as a deputized task force officer during her tenure in Intelligence. These credentials had entitled her to a workweek that did not include weekends, the ability to work in plain clothes and take home an FBI work vehicle.
The petitioner sued under Title VII in the Eastern District of Missouri to challenge the transfer, alleging that the city had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment.
The district court ruled against her on summary judgment, finding that she failed to show a “material employment disadvantage” as required under Eighth Circuit precedent. The court found that, at the summary judgment stage, she failed to support allegations of harm or show that many were attributable to the city (as opposed to the FBI). The court also found that she had forfeited a number of her alleged injuries by failing to mention them in her summary judgment briefing.
The court identified only two alleged harms still in play: loss of prestige and networking opportunities and greater administrative tasks. As to prestige and networking opportunities, the court found that the petitioner’s assertions were undercut by her admission at deposition that her transfer did not cause any harm to her opportunities for advancement. As to administrative tasks, the court found that she had failed to provide evidence to support her claim that her Fifth District responsibilities materially deviated from her Intelligence Division responsibilities. The Eighth Circuit affirmed, agreeing that petitioner could not show materially significant harm.
In their Supreme Court briefs, the petitioner and the Department of Justice argued that harm can always be presumed when a plaintiff asserts some change in job conditions was based on an employee’s protected characteristic.
Orrick’s Bob Loeb, arguing for the city, strongly opposed that position, making clear that some objectively material injury was required. As Loeb explained in oral arguments, the proper standard does not impose “a high bar, but there needs to be something more than mere personal preferences and subjective sensitivities of the particular employee” to support a claim. According to the city, there needed to be “material objective harm” viewed “through the lens of an objective employee, not the frailties of a particular sensitive employee.”
In its decision, the Supreme Court agreed with the city that harm cannot simply be presumed. The Court held that a plaintiff need show only “some harm respecting an identifiable term or condition of employment.” The harm need not be “economic or tangible,” the plaintiff must suffer a “disadvantageous change in an employment term or condition.”
The Court rejected adjectives such as “significant, serious, or something similar” that might suggest the requirement of proof of harm was a high bar. Yet not any injury will do —Title VII’s anti-discrimination provision “circumscribes the injuries that can give rise to a suit” to those that leave a plaintiff “worse off respecting employment terms or conditions.”
The Supreme Court’s requirement of some workplace-related harm is very close to the requirement the city advocated. The city argued that plaintiffs must prove objective harm concerning the terms and conditions of employment—something more than mere personal preference or treatment based on a protected characteristic alone.
Although the Court did not adopt the city’s precise formulations as to the harm required and remanded the case to the Eighth Circuit, the Court’s requirement parallels the city’s core substantive position: that a plaintiff’s claim must be premised on some actual injury with respect to the terms or conditions of employment and that this injury must be proved with evidence.
The Supreme Court’s opinion does not directly address the “objective” component of the harm requirement. Nor does the opinion directly speak to whether mere personal preference would be enough to support the “some harm” standard. But a close reading of the opinion, in context, shows that the Court rejected the idea that the harm requirement can be satisfied based on personal preference alone. All the examples of harm the Court gave are through an objective lens of what would be material harm.
Moreover, the Eighth Circuit had already found that all Muldrow had was a claim of harm based on personal preference. If that type of harm would be considered sufficient under the “some harm” test, the Court would have held that the petitioner satisfied the “some harm” requirement and remanded back only on the question of intent. It is telling that the Court did not do that. Punctuating the point, the Court implied that the mere fact that a change in terms or conditions of employment was “forced” (and thus against an employee’s personal preference) does not satisfy the harm requirement because the Court framed the harm inquiry as to whether there was “some harm from a forced” change.
Justices Thomas, Alito, and Kavanaugh each wrote separately concurring in the judgment. Justice Thomas expressed skepticism that the Eighth Circuit actually applied any heightened-harm requirement. Justice Alito wrote separately to express skepticism that the majority’s opinion and new standard provided helpful guidance. Both opined that there is little if any daylight between the overturned requirement of “material,” “significant,” or “serious” harm and the new requirement of some workplace-related harm. Meanwhile, Justice Kavanaugh would have adopted a presumed harm test, similar to that pressed by plaintiff and the Department of Justice. In his view, the requisite harm could be shown simply by discrimination based on a protected characteristic.
Ultimately, the clarification that a plaintiff must show some workplace-related harm is unlikely to prompt a sea change.
Before this decision, some lower courts spoke in terms of a “material,” “significant,” or “serious” harm standard, but they also frequently articulated the standard as simply requiring something more than a de minimis injury or an injury based on mere personal preference.
The Supreme Court’s rejection of adjectives that may have been read to impose a high bar may mean that more lawsuits will survive the initial stages of litigation. It also may mean that more lawsuits will be brought. Practically speaking, however, the clarification will likely not lower the bar significantly. As Justices Thomas and Alito suggested in concurrences, there is reason to believe that courts will apply the new standard largely in line with previous formulations of the harm requirement.
In any event, it is now clear that harm cannot merely be presumed and that a plaintiff still bears the burden to show harm in the terms or conditions of employment, which meaningfully “circumscribes the injuries that can give rise to a suit.”
As for DEI initiatives, employers should work with counsel to review them, identify and refine practices to mitigate legal risk, and continue their commitment to promoting equal employment opportunities for all.
If you have questions about this update, please reach out to the authors, Bob Loeb and Robbie Manhas (who represented Respondent City of St. Louis in the Supreme Court), or to members of our Employment and DEI Taskforce team, including Erin Connell, Mike Delikat, Laura Becking, Andrew Livingston, Lisa Lupion, Katie Mantoan, Jill Rosenberg, Gary Siniscalco, Esther Lander and Julie Totten.