Employment / 2 min read
In Hamilton v. Dallas County, the Fifth Circuit reversed decades of precedent requiring plaintiff to show actionable employment actions to be “ultimate employment decisions.” The Court left “for another day”, the “precise level of minimum harm” a plaintiff must allege “on top of showing discrimination” in one’s terms, conditions, or privileges of employment.
That day has almost come. The Supreme Court has weighed in on the issue and is poised to hold, in what should be a landmark employment law ruling, that Title VII does not require a “materiality” showing. The employment action at issue in front of the Supreme Court is a job transfer that does not pay Plaintiff less, reduce her status, or lower her benefits. In a five-yearold Title VII lawsuit from the Eight Circuit, Plaintiff Jatonya Muldrow alleges she was moved from a prestigious intelligence division to a different role in the department and later denied another transfer request, all because of her gender. In April 2022, the Eighth Circuit affirmed summary judgment in favor of Plaintiff’s employer, the city of St. Louis, ruling that Muldrow didn't show the reassignment impacted her pay and rank.
Based on the questions asked during Supreme Court oral arguments, most of the justices seemed poised to do away with any materiality threshold test which would “artificially constrain,” in Judge Gorsuch’s words, Title VII’s original intent. Multiple groups, including the NAACP, the National Employment Lawyers Association, the National Women’s Law Center, the American Civil Liberties Union and more have filed amicus briefs on behalf of Muldrow. On the other side, amici arguing in favor of a material harm showing include Local Government Legal Center, National Association of Counties, National League of Cities and International Municipal Lawyers Association, the National School Boards Association, the U.S. Chamber of Commerce, the Society for Human Resource Management, the National Retail Federation, and the Restaurant Law Center.
The impact on employers could be huge if the Supreme Court does away with the material harm requirement. In the Fifth Circuit, which only recently held that material employment actions be limited to “ultimate employment decisions”, a Supreme Court decision doing away with a material harm requirement altogether would be the polar opposite of the “ultimate employment action” standard that the Circuit has followed for over thirty years.
Employers are likely to be subject to many more claims than they had in the past when such showings had been required by the courts. Of course, claims may be nonetheless constrained by the lack of financial harm suffered by plaintiffs even if they suffered discrimination related to their terms, privileges, or conditions of employment based on a protected characteristic. Also, the Supreme Court’s decision may be limited to job transfers only, leaving a wide variety of other workplace actions for future cases. All sides seem to agree that Title VII may still be read to include a “de minimis” exception to actionable claims, although oral arguments did not seem to provide examples or guidance of what exactly “deminimis” means.
Employers should understand that if the Supreme Court decides that lateral transfers made for discriminatory reasons (as will be pled by plaintiffs) are unlawful, they may need to review their HR policies and may need to train their managers on the nuances of lateral transfers and other actions that may give rise to actionable claims. In fact, this case could change the HR landscape for businesses and employers across the nation for decades to come.