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Section 703 of Title VII of the Civil Rights Act makes it unlawful for an employer to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. The central question inherent in a Section 703 case is whether a given employment-related action constitute a sufficient harm or “adverse action.” While firing or demoting an employee are clear examples of adverse employment actions, the line can otherwise be blurry when it comes to failing to promote or denying a job transfer.

The U.S. Supreme Court recently heard oral arguments in a case that considers this line, in a lawsuit filed against St. Louis City. In Muldrow v. City of St. Louis, the plaintiff in the case, a St. Louis Police supervising officer, alleges she was transferred to another department solely because of her gender. However, neither her pay nor her rank was reduced. Similarly, she remained in a supervisory position and otherwise suffered no harm other than the transfer itself. Is this employment action a sufficient harm to be an adverse employment action?

Though courts across the country have used different terms to define an adverse action, generally courts require the disadvantage to be tangible or material—including the 8th Circuit. In this case, Muldrow argues that, generally, such a transfer—even without a change in pay, rank, or responsibilities—is enough to be considered an adverse employment action under Title VII. As long as the transfer was made solely because of the employee’s protected status, such a transfer would create Title VII liability on the basis of disparate treatment.

The plain text of the statute does appear to support such a construction, as such a gender-based transfer is discrimination with respect to the employee’s terms, conditions, or privileges of employment. Opposition to such a holding includes decades of case law requiring an objective limit on such claims. The 8th Circuit ruling in Muldrow explained that minor changes in duties or working conditions which cause no materially significant disadvantage are not enough. Further, under 8th Circuit precedent, transfers are not adverse employment actions unless they involve a demotion in either form or substance. Though there are inconveniences associated with being transferred, like having to rebuild connections in a new community, these minor inconveniences are not enough to form the basis of a discrimination suit. On the other hand, however, denial of a sought-after transfer may constitute an adverse employment action—something employers will need to keep in mind, particularly where the transfer would result in a change in pay, rank, etc.

While the court’s ruling in this case could dramatically shift the landscape of employment discrimination litigation, any such ruling changing the standard for adverse actions could be limited to the narrow set of cases involving unnecessary job transfers based solely on discriminatory motives.

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