Late last year, the U.S. Supreme Court heard oral arguments in a case that could change the law on what impact on the employee an employer’s decision must make to prove workplace discrimination. Many expect the Supreme Court to issue a decision in Muldrow v. City of St. Louis, Missouri this spring or early summer.
Jatonya Muldrow alleged that the St. Louis Police Department discriminatorily transferred her out of a task force in the intelligence division to a patrol supervision position because of her gender. The federal court and the Eighth Circuit Court of Appeals held that her transfer, even if it were because of her gender, was not an adverse employment action because the transfer did not significantly disadvantage Muldrow.
The standard in the Eight Circuit is that an adverse employment action must significantly disadvantage the affected employee. Muldrow’s attorney argued that even trivial harms in the workplace “immediately become nontrivial” if they occur because of discrimination against a protected status.
The 10th Circuit, which is based in Denver and covers Colorado and surrounding states, requires an adverse employment action to be material. A mere inconvenience or an alteration of job responsibilities is not an adverse employment action allowing the employee to prevail in a discrimination case.
Would the 10th Circuit have decided Muldrow differently? In Aquilino v. Univ. of Kansas (10th Cir. 2001), the 10th Circuit held that reassignment with significantly different responsibilities was a significant change in employment status that rose to the level of a material adverse employment action.
Note that this case narrowly applies to transfers and reassignments, but some employers fear it could open the floodgates to increased complaints and litigation over minor inconveniences in the workplace. Combined with lower burden of proof in harassment cases established by the new Colorado POWR Act, employers could face heightened exposure to liability for workplace decisions and actions.
Employers Council offers extensive online resources and training courses on preventing discrimination and harassment in the workplace. For more information, please email our Member Experience Team.
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