Supreme Court’s New Test for Bias Claims Still Needs Hashing Out

The US Supreme Court’s new standard for the harm a worker must show to challenge allegedly discriminatory job transfers contains enough ambiguities to spark further debate over what’s necessary to bring a viable bias claim, lawyers and law professors said.

The justices unanimously held Wednesday that workers must demonstrate that they suffered some harm related to job terms from an ostensibly lateral transfer that occurred for allegedly discriminatory reasons.

The ruling is one of the high court’s few forays—outside of the retaliation context—into what constitutes an adverse employment action that can trigger a lawsuit under Title VII of the 1964 Civil Rights Act, said Joseph Seiner, a law professor at the University of South Carolina.

“This decision provides guidance and creates certain boundaries, but the terminology used in it has to be litigated,” said Seiner, a former lawyer for the US Equal Employment Opportunity Commission, which enforces Title VII and other federal anti-discrimination laws. “There’s a lot of ambiguity in this decision.”

The Supreme Court’s decision in Muldrow v. City of St. Louis follows a steady stream of appellate court disputes in recent years about what kinds of workplace disparities and actions rise to the level of a violation of federal anti-bias law.

The justices revived former St. Louis police sergeant Jatonya Clayborn Muldrow’s lawsuit alleging the city violated Title VII by forcing her out of the intelligence unit and denying her later transfer request because of her gender.

Although the ruling pertains to transfers, the justices’ focus on the language of Title VII will allow courts to follow Muldrow for many types of alleged discrimination where the harm isn’t obvious, legal observers said.

That includes work scheduling, demotions without reductions in pay, and required training in workplace diversity, inclusion, and equity programs.

“The opinion leans heavily on the text, so there’s no reason the same standard wouldn’t apply to other circumstances,” said Katie Eyer, a discrimination law scholar at Rutgers University.

Definitions Needed

The Supreme Court rejected the heightened harm standard several circuits have used, while also declining to jettison a requirement to show additional injury beyond the alleged discrimination itself.

Justice Elena Kagan, an Obama appointee, penned the decision that introduced a middle level of harm, somewhere between the well-established “de minimis” level—which isn’t enough—and “significant,” which represents too high a bar.

The ruling references employer actions that cause “some harm” and leave a worker “worse off,” terms that will have to be tested in future litigation to get a clearer sense of what they mean in practice, lawyers and law professors said.

The court added further ambiguity by not explaining what qualifies as an employment term that must be harmed to rise to the level of alleged discrimination that’s actionable under Title VII, said Sandra Sperino, a discrimination law scholar at the University of Missouri.

“The court has never defined ‘terms and conditions of employment’ in discrimination law, so it’s unclear what fits into those words,” she said.

The Muldrow harm standard also creates tension with the Supreme Court’s sexual harassment jurisprudence, Sperino said. If Title VII discrimination claims only have to meet that middle-ground threshold, that calls into question why the harm for sexual harassment claims must be severe and pervasive, she said.

Broader Universe

Despite those questions, the ruling is part of a growing trend of courts considering a broader universe of personnel decisions as forming the basis of a job bias claim, said Tiffany Cox Stacy, an attorney with the management-side firm Ogletree, Deakins, Nash, Smoak & Stewart PC.

“That means human resources and in-house legal will need to look at more than just terminations and promotions, in terms of assessing the business reasons and whether there is any sort of bias involved,” Stacy said. “Employers want to make sure that analysis takes place and is documented in some form.”

The decision could ignite more lawsuits, but it didn’t change the high bar for plaintiffs to prove an action was taken because of a worker’s sex, race, or other traits protected by Title VII, said Lindsay Buchanan Burke, co-chair of Covington & Burling LLP’s employment practice.

Ultimately, the decision’s creation of a some-harm standard may not change that many outcomes in Title VII cases, considering the high bar for plaintiffs to prevail, Burke said.

Overall, the justices’ focus on the text of Title VII led to a worker-friendly ruling, as with their decisions expanding protections for workers’ sexual orientation and gender identity in Bostock v. Clayton County and weakening an employer defense to religious accommodation claims in Groff v. DeJoy.

Muldrow seems like a companion case to last year’s Groff decision, said Michael Selmi, a law professor at Arizona State University and former civil rights lawyer at the US Justice Department.

“And like Groff, it is clear that the unanimous Court is changing the law, but it is not so clear what they have changed it to,” Selmi said.

The case is Muldrow v. City of St. Louis, 2024 BL 130995, U.S., No. 22-193, 4/17/24.