Speaker 1: 0:20

Hey, it's Mark and welcome back. Today's episode is the big win for employees proving discrimination. The job transfer now equals some harm. Employers have notoriously used the job transfer to a lateral position or assigned an employee to work project work, only to lay them off within a year. I tell clients this is the proverbial writing on the wall for them to quote get the heck out, you are not welcomed here any longer. If the employee becomes frustrated enough, they quit and find other employment. That's the point of the employer's default, this default management strategy. The benefit to the employer is simple the employee resigns and cannot collect unemployment benefits because they quit, saving the employer money.

Speaker 1: 1:09

Employers also use job transfers to discriminate based upon sex, among other protected classifications, for example, transferring a female police officer in a high-level position to a lesser desirable position in favor of a male officer. For years, employees have had to prove some form of quote, significant harm or significant adverse harm when proving discrimination cases. In federal implement law cases, employees were routinely unable to successfully convince courts that a transfer was a material adverse action to support a discrimination claim. Thanks to a new Supreme Court decision, employees were given a new tool to combat discrimination of any form. On April 17, 2024, the US Supreme Court issued an unanimous decision in the case of Muldrow v City of St Louis, missouri. There, a female police officer named Jatanya Claiborne brought a discrimination case against the city, alleging sex discrimination in violation of Title VII of the 1964 Civil Rights Act. After she was transferred, the lower courts denied her relief but the Supreme Court fashioned a new lower standard of proof making it far easier for employees to combat discrimination of any form just by showing factual proof that quote some harm occurred in the terms, conditions and privileges of their employment, substantially motivated by, in this case, her sex. Presumably. Other forms of adverse employment actions will also qualify under this same lower standard of proof. The Supreme Court had to resolve a dispute among the lower courts that imposed a much higher burden of proof on employees claiming discrimination. Previously, employees had to show a quote significant harm when they received a job transfer of any kind that did not result in loss of salary or bonus compensation. This was an impossible burden to many employees and their employment lawyers like myself. The basis of the court's rationale to rule in favor of Officer Muldrow was the phrase significant harm, which appeared nowhere in the text of Title VII of the 1964 Civil Rights Act and the court borrowed in this case Justice Kagan, a tactic from the conservative textualist judge's playbook. Justice Kagan was appointed by President Obama. Justice Kagan wrote for the court, quote Sergeant Tanya Claiborne.

Speaker 1: 3:33

Muldrow maintains that her employer, the St Louis Police Department, transferred her from one job to another because she is a woman. She sued the city of St Louis under Title VII, alleging she had suffered sex discrimination with respect to the terms or conditions of her employment. The courts below rejected the claim on the ground that the transfer did not cause Muldrow a significant employment disadvantage. Other courts have used similar standards in addressing Title VII suits arising from job transfers. Today we disprove that approach. Although an employee must show some harm for a forced transfer to prevail in a Title VII lawsuit, she need not show that the injury satisfies the significance test. Title VII's text nowhere establishes that high bar. Justice Kagan continued. Muldrow need only show some injury, respecting her employment terms and conditions. The transfer must have left her worse off, but need not have left her significantly so, and Muldrow's allegations, if properly preserved, supported, meet that test.

Speaker 1: 4:43

With a room to spare, the court said Recall her principal allegations. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division which was deputized as a task force officer with the FBI, giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniform job supervising one district patrol's officers, in which she was less involved in high visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends, and she lost her take-home car. If those allegations approved, the court said she was left Warsaw several times over. The court said it does not matter, as the courts below thought and Justice Thomas echoes in his concurring opinion, that her rank and pay remain the same or that she still could advance to other jobs.

Speaker 1: 5:42

The court said Title VII prohibits making a transfer based on sex, with the consequences Muldrow described. End quote. This decision, in my opinion, is a huge blow to employers. Hooray, we need a win for employees, don't we? The job transfer or project work tactic is ubiquitous in the workplace, which I have identified as a default management strategy designed to force employees to quit, among other things. Now, under this lesser burdensome standard, the employee only has to factually demonstrate quote some harm caused by the transfer to project work assignment. Yes, this will open, or I should say unlock the previously dammed up number of cases, as the Supreme Court's concurring opinion noted, and I say let the flood begin in earnest. Current opinion noted, and I say let the flood begin in earnest. Better yet, employees must now argue they experience quote some harm in any employment discrimination case, not just job transfer or project work cases. This decision helps tip the scales back in favor of employees who challenge employers claiming discrimination based on sex, age, sexual orientation, race, national origin, disability, religion and retaliation, among the name of the few. That is why the decision is such a big deal for employees and will directly help employees argue for better treatment, better severance packages and improve on lawful discrimination in court.

Speaker 1: 7:10

Just as an end note to this discussion, the items that people experience in terms of their work that we want to label them as adverse employment actions can include a performance improvement plan or a negative performance review of adverse action, if you want to call them. Weren't adverse actions unless and as the Second Circuit has noted in prior cases and other circuits around the country that the PIP and the performance review were connected to the termination, and it's up to the employee to demonstrate that the PIP and the negative performance review were motivated by bias against them for whatever protected class classification they had. It appears now, using these two examples of performance improvement plans and negative performance reviews, that the court has lowered the bar for employees across the country to argue that some harm occurred to them, meaning if you had a negative review or a PIP, that that's significant enough, but not the significance test that the court had identified. Some harm had occurred, so you get a negative review. It can be argued that some harm has occurred because you're getting a negative review. What if you get a negative review and you lose access to a bonus Because the bonus program says you have to meet certain thresholds? Or if you're on a PIP, that some companies have policies that say that if you receive a PIP, you're not going to qualify for a bonus or you're not going to qualify for a raise. This actually happened most often is that you cannot transfer or get a promotion sorry because you were put on a PIP or received a negative review. So the bar has lowered down.

Speaker 1: 9:03

You have to understand the politics of the court in this case. It is a unanimous decision with some current concurring opinions. It was written by Justice Kagan and oftentimes the court will do this when they want to get some other decision with Justice Kagan to vote for. So maybe this was Justice Kagan's pet project to rifle through and get the court to agree. But you won't really know that because the court doesn't really describe or discuss how it internally deliberates these cases. But you can kind of read between the lines. So a new tool for us to use in our review of our cases as we try to figure out what had happened to us even before the adverse event takes place. But the bar is lowered and that's a good thing for employees these days because they need all the help they can get given this one-sided, very dysfunctional employment relationship they have with their employer. So, with that said, have a great week. I'll talk to you soon.