The Supreme Court just lowered the bar for litigants alleging workplace discrimination. But let’s not hear any complaining! The Justices, in a unanimous decision, did exactly what they’re supposed to do: apply the plain language of the statute. If you want a different result, talk to Congress, not the Court.

Sergeant Jatonya Muldrow had worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division since 2008. In 2017, a new Intelligence Division commander asked to transfer her out of that unit so he could replace her with a male police officer. Against Muldrow’s wishes, the Department approved the request and reassigned her to a uniformed job. Her rank and pay remained the same, but her responsibilities, perks, and schedule did not: she was relegated to supervising the day-to-day activities of neighborhood patrol officers, no longer worked with high-ranking officials, lost access to an unmarked take-home vehicle, and had a less regular schedule involving weekend shifts.

She sued under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin. The district court granted summary judgment, concluding that she hadn’t suffered significant enough harm as a result of the transfer to merit relief. The U.S. Court of Appeals for the Eighth Circuit affirmed the lower court’s decision.

In a decision published on April 17, 2024, the U.S. Supreme Court reversed, 9-0. In an opinion which should surprise no one, because it simply reflects the language of Title VII, the Court held that while a complaining party must show that they suffered some harm because of illegal discrimination, they do not have to show that the harm incurred was “significant” or otherwise exceeded some heightened bar.

Writing for the Court, Justice Kagan observed that the relevant text of Title VII does not require a transferee alleging discrimination to show that the adverse consequences were

“significant” . . . or serious, or substantial, or any other adjective suggesting that the disadvantage to the employee must exceed a heightened bar. . . . To demand “significance” is to add words—and significant words, as it were—to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written.

This marks a significant (sorry!) change in the way Title VII has been applied in many courts. Justice Kagan cited cases from the First, Second, Fourth, Seventh, Tenth, Eleventh, and DC Circuits that all had improperly raised the bar and required “significant” detriment for transfer disputes. As long as the discriminatory transfer causes “some” harm to the terms, conditions, and privileges of the employee (for one that causes no harm, or actually brings about improvement, is unlikely to spark litigation) it violates Title VII.

Justice Kagan normally is aligned with the Court’s left wing. But during her confirmation hearings, in a nod to Justice Scalia, she observed that “we’re all textualists now.” And that would seem to be the case. In the words of the statute, a transfer necessarily changes the terms and conditions of employment. Justice Kavanaugh noted in his concurrence that “the discrimination is harm.” What the Supreme Court is saying is that we are bound by the plain meaning of the words in the statute and that courts err when they attempt to graft in requirements not supported by the text. This is good for the rule of law because it promotes transparency and predictability.

The case is Muldrow v. City of St. Louis, No. 22-193, 2024 U.S. LEXIS 1816 (Apr. 17, 2024).

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