New Case by the U.S. Supreme Court Defining “Adverse Employment Action” for Discrimination, Harassment, & Retaliation Employment Matters

The Supreme Court of the United States (“SCOTUS”) has clarified that the term “adverse employment action,” in the context of Title VII, does not contemplate the notion of “significance.” This is a big deal for attorneys, business owners, and policy wonks alike, so let’s talk about it.

Title VII is best-known for its federal anti-harassment, anti-discrimination, and anti-retaliation protections for race, gender, national origin, and religion; you might recognize these categories and protections from harassment, discrimination, and retaliation from one of the biggest sections of your Employee Handbook. The term “adverse employment action” is likely relevant to all those issues, especially retaliation. So, what exactly is an “adverse employment action?” 

Until April 17, 2024, it was “a tangible change in working conditions that produces a material employment disadvantage.” 30 F. 4th 680, 688 (2022) (internal quotation marks omitted). The operative term there is (or was, at any rate) “material;” the definition went on to clarify that “minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action.”

Well, thanks to the recent case of Muldrow v. City of St. Louis, Missouri, 601 U.S. 346 (2024), there’s a new standard in town from the U.S. Supreme Court: “disadvantageous,” which requires that a plaintiff “show only some injury respecting [their] employment terms or conditions.” In Muldrow, the lower court incorrectly applied a “significant injury” standard, which standard SCOTUS ultimately declared “cannot survive.” Instead, SCOTUS held that the “significance” of the alleged adverse action was irrelevant; only the presence of an adverse action was required to meet the Title VII standard.

In Muldrow, the plaintiff – a law enforcement officer – was reassigned from the Intelligence Division to a uniformed job in the PD’s Fifth District, consisting mostly of delegation and administrative paperwork. The Division Commander, for his part, freely admitted on the stand that that the plaintiff’s reassignment was due to the plaintiff being a woman; the Division’s defense was purely predicated on the argument that, since the plaintiff’s rank and salary remained the same after the transfer, the transfer could not possibly constitute an “adverse employment action” under Title VII. 

While the lower courts agreed, SCOTUS did not. Per SCOTUS, the plaintiff was required only to prove that “The transfer must have left her worse off but need not have left her significantly so.” Despite the lateral move in rank and pay, the transfer cost the plaintiff her FBI-status and accompanying unmarked vehicle, as well as her preferred schedule. This workplace action, declared SCOTUS, was sufficiently “adverse” to support a claim under Title VII. 

There’s a crucial distinction here: it’s not that SCOTUS necessarily agreed that the Muldrow plaintiff’s injuries were sufficiently adverse that she should automatically prevail under Title VII, but rather that the court’s opinion on the “significance” of the adverse action is irrelevant to whether that action should be allowed to proceed to a jury trial.  Moving forward, to survive dismissal or summary judgment, all a plaintiff need allege is the presence of an adverse action; the severity or triviality of such action is irrelevant to everyone except the jury (or the judge, in the event of a bench trial).

This new standard is a bit of a double-edged sword. On the plus side, it is substantially more certain than the old standard, which alleviates any ambiguity as to whether a plaintiff has properly plead their claim under Title VII. On the negative side, minor workplace inconvenience – e.g. reassigned parking, rescheduled shifts – may suddenly suffice for a claim to move forward and avoid summary judgment under Title VII.  We are here to help if you have any questions.