Real World Impact: In April, the Supreme Court issued a decision in Muldrow v. City of St. Louis, Missouri, lowering the standard that federal courts had applied for decades on discriminatory transfer claims under Title VII of the Civil Rights Act of 1964. Among other things, a discrimination claim requires a certain level of disadvantage to the employee to survive: the employee must suffer an “adverse employment action.” For a transfer, federal courts have long held that it must result in a “significant” or “material” disadvantage to constitute an adverse employment action. This changed in Muldrow, where the Supreme Court held transferees need only show “some harm.”
The question, of course, is what the difference is between the new and old standard. As Justice Alito stated in his concurring opinion in Muldrow, “I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.” Over five months later, we explore how.
No Input yet from the Second Circuit:
As the federal court with the highest authority on New York law after the U.S. Supreme Court, the U.S. Second Circuit Court of Appeals’ interpretation of the Muldrow standard will be the most important one for New York employers (absent legislation from Congress or further clarification from the Supreme Court). However, to date, the Second Circuit is one of the few circuit courts of appeals that are silent on the matter. Therefore, for now, New York employers must look to New York federal district court judges and other circuit courts.
The Bad News: Muldrow may not be Limited to Title VII Transfers:
Muldrow addressed a discriminatory transfer claim under Title VII; it did not consider the standard for any other kind of employment action under any other discrimination statute. Nevertheless, some New York district court judges and circuit courts have applied Muldrow’s standard to all employment actions (not only transfers), and to other discrimination statutes such as the Americans with Disabilities Act of 1990, Age Discrimination in Employment Act of 1967, and Section 1981 of the Civil Rights Act of 1866. That said, New York district judges have repeatedly indicated that they are waiting for the Second Circuit to decide whether to limit Muldrow to transfers.
The Good News: Muldrow has made (Almost) No Difference:
As discussed in our breakdown of the Muldrow decision, in their concurring opinions, Justices Alito and Thomas were skeptical that lower courts would apply the “some harm” standard any differently than the “material harm” standard. So far, it appears that they were (mostly) correct.
Even with some federal judges applying Muldrow beyond transfers and Title VII, the impact has been minimal: Sure, New York district court judges are now split on whether Muldrow opened the door to consider performance improvement plans and exclusions from work meetings adverse employment action by definition. Also, some circuit courts have opined that even suspensions with pay might constitute adverse employment action under Muldrow. However, circuit courts and New York district court judges continue to find that reprimands, exclusions from social events and trips, and changes in a work schedule or work location still do not, by themselves, constitute adverse employment action.
In addition, most federal employment discrimination claims in New York are brought alongside the more lenient New York State and/or City Human Rights Laws. Those local statutes already apply a standard that requires a lesser harm than the traditional federal adverse employment action standards. Thus, any employment action on the margins that, for the first time, can proceed for federal claims after Muldrow, likely already would have proceeded for analogous New York state or city claims.