Michele Harmon
This article is the hot topic for July. When the Supreme Court issues an opinion, we must pay attention to it—especially when it deals with our employees’ rights.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. The law has added more protections for more groups, and all should be included in every employer’s employee handbook.
Fast forward 60 years later, and many legal cases and multiple arguments contend that females still need to be treated equally in job status and pay. If we examine the statistics, we still have room for improvement, but that is for another day.
In the case of Muldrow v. City of St. Louis, Missouri, on April 17, 2024, the Supreme Court reached a decision almost unanimously—such agreement being an infrequent occasion for the Court. The case is tied to an employee discrimination claim under Title VII related to a job transfer. The court ruled that an employee only needs to show some employment disadvantage resulting from the transfer and no longer needs to show a significant disadvantage. The Court’s ruling resolved a split of circuit courts, including the 2nd, 4th, 7th, 8th, 10th, and 11th, on the issue of the threshold for harm necessary to claim a Title VII discrimination claim related to job transfers. The question of harm was whether it was significant, material, or serious.
In this case, the female employee did not receive a pay reduction or reduction in rank but lost the vehicle provided to her by the FBI, lost her status of working with the FBI in the Intelligence Division, and lost her routine of a regular Monday-Friday workweek. The employee had been in her role with the Intelligence Division from 2008-2017. She had been investigating high-profile cases, including public corruption and human trafficking. She was also designated as a task force officer with FBI credentials. Her new schedule involved rotating with some weekends and supervising patrol officers. One key takeaway from this case is that supposedly her new boss, who took over in 2017, wanted to replace her with a male because of the nature of the work.
Justice Elena Kagan wrote the opinion for the Court. The Court stated that the Appeals Court in St. Louis had raised the bar too high. She wrote the opinion for Chief Justice Roberts, Justices Sotomayor, Gorsuch, Coney Barrett, and Brown Jackson. Justices Kavanaugh and Alito had somewhat different views. Thomas did not write a separate opinion that can be found at this writing.
The Court’s opinion stated that to make a Title VII claim, a transferee must show some harm with respect to an identifiable term or condition of employment, and many forced transfers leave workers worse off as respecting employment terms and conditions.
An example of a change in employment terms and conditions might be the school principal being reassigned to work in another role that no longer supervises the campus and the employees. The employer might demote an employee in a leadership role and not cut their pay, but their rank and responsibilities change significantly. Another might be an employee reassigned to work in a much smaller office or on the night shift. Title VII claims, like any other discrimination claim, are more than what the employee feels is wrong. The employee still must show an injury. However, if it looks like a duck and quacks like a duck, it is usually a duck.
With this decision, you can bet more claims will be filed from employees based on discrimination for job transfers, undesirable shift assignments, and reduced duties or titles. The Equal Employment Opportunity Commission (EEOC) now has more leeway to investigate more claims under Title VII. Call your HR folks and lawyer if the EEOC comes to call.
The practical lesson for employers is to hire carefully, and just because an employee is at will does not mean you can reassign them on a whim. Ensure every employee signs a job description. Be cautious. Consult your attorney before reassigning an employee. It is better to promote than demote. Remember that pay cuts of 20 percent or more may give an employee good cause connected with the work to quit and qualify for unemployment benefits. Notice of any changes in the pay rate should always be in writing for the company’s protection to minimize disputes over the pay rate.
Lastly, we know that reorganizations and internal transfers are common in our area due to mergers and acquisitions, and your HR team needs to be involved in any possible changes. Avoid the overwhelming tendency to give your not-so-great employees the worst shifts. Make sure all transfers can be directly traced to a legitimate business interest.
Finally, promptly investigate any employee complaints that cite discrimination. The investigation should be done by your HR team, which works independently from other leadership line supervisors. The biggest mistake I see is that the employer fails to listen to HR and legal counsel. Do not let emotion carry you away.
“Your employees are the heart of your organization.” Dr. Michele Harmon is a Human Resource professional, supporting clients in Texas and New Mexico that range in size from five to more than 3,000 employees. Email: micheleharmon1@gmail.com