The historic Civil Rights Act of 1964 endures as a pivotal instrument for plaintiffs seeking to challenge discrimination in various settings.[i] Title VII of the Act serves to protect employees and applicants from discriminatory employment decisions.[ii] Moreover, Section 703(a)(1) of Title VII—commonly referred to as the “anti-discrimination provision”—renders it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”[iii]

The statute’s text appears to impose broad liability for employment actions motivated by an employee’s membership in a certain protected class. However, circuits across the country have interpreted the statute inconsistently.[iv] In Muldrow v. City of St. Louis, the United States Supreme Court will consider whether Title VII prohibits discriminatory employment actions per se, or, if the employee must also demonstrate the action caused them a “significant disadvantage.”[v]

Jatonya Clayborn Muldrow worked with the St. Louis, Missouri Police Department as a Sergeant from 2008 to 2017.[vi] Upon the arrival of Captain Michael Deeba, Sergeant Muldrow was transferred from the Intelligence Division to the Fifth District.[vii] Subsequent to this transfer, Sergeant Muldrow filed a complaint alleging gender discrimination in violation of Title VII, against the City of St. Louis and Captain Deeba, each of whom then filed motions for summary judgment.[viii] Since Sergeant Muldrow’s claim relies on indirect evidence of sex discrimination, Eighth Circuit precedent required her to establish the transfer constituted an “adverse employment action.”[ix] The court reasoned that the transfer was not an adverse employment action because it did not “significantly alter” the Sergeant’s work duties and she “experienced no change in salary or rank.”[x] As a result, the district court granted the defendants’ summary judgment motion.[xi]

On appeal, the Eighth Circuit affirmed the district court’s ruling and held that the transfer could not form the basis for Sergeant Muldrow’s claim.[xii] The court explained that “an adverse employment action” involves a “tangible change in working conditions” which produces a “material employment disadvantage.”[xiii] To illustrate the insufficiently “material” disadvantage suffered by Sergeant Muldrow, the court emphasized that the transfer to the Fifth District did not modify her “title, salary, or benefits.”[xiv] The court’s affirmance illustrates their view that an employer may be liable for discriminatory employment actions under Title VII only when the plaintiff experiences a corresponding “significant disadvantage.”[xv]

In many cases such a rule is inconsequential, because the necessary “disadvantage” is inherent in an employer’s decision to refrain from hiring, or electing to discharge, an employee. But, regarding more discreet employment actions, such as Sergeant Muldrow’s transfer, this additional requirement effectively departs from the statute’s plain text and curtails Congress’ purpose in its enactment.[xvi] The proposition that a discriminatory employment action must be accompanied by additional “harm” to the employee, if they wish to state a claim under Title VII, embodies the divergence among circuits which the Supreme Court appears apt to resolve.

The D.C., Sixth, and Ninth Circuits adhere to the “straightforward meaning” of Section 703(a)(1) and therefore dictate that an employment action is unlawful when based on discriminatory grounds.[xvii] For instance, in Chambers, the D.C. Circuit explained that Title VII’s antidiscrimination provision does not compel an employee to “make a separate showing of ‘objectively tangible harm.’”[xviii] Similarly, the Ninth Circuit has held that an employee states a Section 703(a)(1) “disparate treatment” claim when they are reassigned because of their membership in a protected class, irrespective of whether the transfer caused a “materially significant” disadvantage.[xix] Within this framework, discriminatory transfers unquestionably fall within the anti-discrimination provision’s scope since the employees are subject to disparate treatment because of their membership in a protected class.

While no remaining circuits adopt as strict an interpretation as the D.C. or Ninth, and each interpret Section 703(a)(1) with a degree of idiosyncrasy, the Third and Fifth Circuits have employed a particularly restrictive standard. For example, the Third Circuit demands that discrimination be “tangible enough” to alter an employee’s “compensation, terms, or privileges of employment.”[xx] Such an approach is akin to the Eighth Circuit’s, which emphasized the transfer’s lack of effect on “title, salary, or benefits” when it held that Sergeant Muldrow failed to state an actionable claim.[xxi]

Likewise, by confining Title VII claims to “ultimate employment decisions,” the Fifth Circuit boasted a similarly restrictive standard.[xxii] In one instance, the court held that black employees failed to state a Title VII claim when they were forced to work outside while white employees enjoyed indoor air-conditioning.[xxiii] The court reasoned that unlawful employment actions include only “ultimate” decisions such as “hiring, granting leave, discharging, promoting, or compensating.”[xxiv] Interestingly, the Fifth Circuit recently abandoned their “ultimate employment decision” requirement because, they explained, Title VII “evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.”[xxv] And, while the Fifth Circuit maintains the “adverse employment action” constraint, they have suggested that this is “not limited to ‘economic’ or ‘tangible’ discrimination,” but instead covers the spectrum of the statute’s  “terms, conditions, or privileges” language.[xxvi]

The Supreme Court in Muldrow must elucidate the appropriate framework for claims brought pursuant to Title VII and direct courts to emphasize the statute’s plain text, rather than the judicially created component of some additional harm. If one can properly allege they suffered disparate treatment because of their membership in a protected class—thereby altering their “terms, conditions, or privileges” of employment—then the claim should be allowed to proceed. This approach both respects the statute’s plain text and effectuates Congress’ intent to eliminate “disparate treatment” in the workplace.[xxvii] A contrary standard could permit an employer to assign employees particular tasks, offices, or roles based on “race, color, religion, sex, or national origin”—unless the employee can demonstrate a resultant “significant disadvantage.” Accordingly, if establishing a “significant disadvantage” is necessary for Title VII claims, courts will be obligated to apply a malleable framework that permits incidents of workplace discrimination merely because the ensuing “disadvantage” was deemed inadequate.

Finally, among the chief arguments against adopting a plain text approach is the assertion that frivolous lawsuits or “de minimis” discrimination claims will excessively burden courts.[xxviii] Not only is Congress fully capable of amending the statutory language as they see fit, but plaintiffs are constrained by existing pleading standards which necessitate a complaint to contain “sufficient factual matter” to state a “plausible” discrimination claim.[xxix] Additionally, the statute’s text provides further deterrence to “frivolous” Title VII claims by requiring that plaintiffs demonstrate a consequent effect on their “terms, conditions, or privileges” of employment.[xxx] In the context of discriminatory transfer claims—such as Sergeant Muldrow’s—this requirement is satisfied, and a decision to the contrary represents a departure from both the statute’s plain text and Congressional intent.


[i] Title VI Legal Manual, U.S. Dep’t of Justice, Civil Rts. Div., at 1, [].

[ii] Laws We Enforce, U.S. Dep’t of Justice, Civil Rts. Div. (June 15, 2023), [].  

[iii] Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2023).

[iv] Petition for Writ of Certiorari at 22, Muldrow v. City of St. Louis, 2022 WL 3999807, at 11–15 (highlighting the disparate treatment of discriminatory employment practice claims under Section 703(a)(1)).

[v] Muldrow v. City of St. Louis, 143 S. Ct. 2686 (2023).

[vi] Muldrow v. City of St. Louis, No. 4:18-CV-02150-AGF, 2020 WL 5505113 (E.D. Mo. Sept. 11, 2020), aff'd sub nom. Muldrow v. City of St. Louis Missouri, 30 F.4th 680 (8th Cir. 2022).

[vii] Id. at 1.

[viii] Id.

[ix] Id. at 7

[x] Id. at 9.

[xi] Id. at 10.

[xii] Muldrow v. City of St. Louis Missouri, 30 F.4th 680, 687 (8th Cir. 2022), cert. granted in part, 143 S. Ct. 2686 (2023).

[xiii] Id. at 688.

[xiv] Id. at 688–89.

[xv] Id. at 690.

[xvi] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).

[xvii] See Chambers v. D.C., 35 F.4th 870 (D.C. Cir. 2022) (finding a Title VII violation when an employee’s job transfer request is denied because the opportunity would be offered to a similarly situated colleague but for their membership in a protected class); Threat v. City of Cleveland, Ohio, 6 F.4th 672, 679 (6th Cir. 2021); Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000).

[xviii] Chambers, 35 F.4th at 879.

[xix] Albro v. Spencer, 854 F. App'x 169. 170 (9th Cir. 2021).

[xx] Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004).

[xxi] Muldrow, 30 F.4th at 688–89.

[xxii] Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002).

[xxiii] Peterson v. Linear Controls, Inc., 757 F. App'x 370, 373 (5th Cir. 2019).

[xxiv] Id.

[xxv] Hamilton v. Dallas Cnty., 79 F.4th 494, 501 (5th Cir. 2023)

[xxvi] Id. at 502.

[xxvii] Vinson, 477 U.S. at 64.

[xxviii] Chambers, 35 F.4th at 878.

[xxix] Id.

[xxx] Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (2023).

Friday, January 5, 2024