Court Tackles Statutory Interpretation of “Discrimination” Under Title VII

In Muldrow v. City of St. Louis MO, Jatonya Muldrow alleges that the City of St. Louis Police Department transferred her to a different position and then denied her a requested transfer because of her sex in violation of Title VII of the Civil Rights Act of 1964. Section 703(a)(1) of the Act forbids employers from discriminating on the basis of race, color, religion, sex, or national origin concerning “terms, conditions, or privileges of employment.” The Eighth Circuit held that Muldrow’s forced transfer and transfer denial did not violate Title VII because the law prohibits only adverse employment actions that result in materially significant disadvantages for employees.

The principal question before the Court is whether Title VII prohibits discrimination as to all terms and conditions of employment or whether an employee must show some kind of harm, like a materially significant disadvantage, in addition to the discriminatory act. Muldrow argued that a heightened harm requirement contradicts the statute’s text and the Court’s precedent. Instead, she contends, so long as the discriminatory act concerns an employee’s terms, conditions, or privileges of their employment, that is actionable under the statute. And at the enactment of Title VII, day-to-day circumstances of a job, such as transfers, were considered within the definition of a term or condition of employment. The United States filed an amicus brief supporting Muldrow’s position that all discriminatory job transfers, not just those resulting in a significant disadvantage, are actionable.  

The City argued that Congress has interpreted “discrimination against” in Title VII as requiring proof of an objectively meaningful harm, and the context of Title VII supports this interpretation. For example, in Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68-69 (2006), the Court held that “‘discrimination against’ refers to distinctions or differences in treatment that injure protected individuals.” The City also argued that in several other opinions, the Court has held that the harm must be objectively material. 

At oral argument, Chief Justice Roberts along with Justices Thomas, Kagan, and Jackson explored whether the Court’s precedent permits conflating harm and discrimination, and the consequences of reading Title VII that way. Justices Kavanaugh, Barrett, and Kagan questioned whether the stigma of being treated differently on the basis of sex is actionable, and, if so, whether affirmative action would be discrimination under Title VII. Justice Alito questioned whether there should be some kind of threshold, such as a de minimis standard, for actionable discriminatory acts in the workplace.   

This case was argued on December 6, 2023. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information, please contact Chantel Febus, James Azadian, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.