Employment / 1 min read
The U.S. Supreme Court has ruled that Title VII of the Civil Rights Act prohibits discriminatory job transfers even if they do not come with significant harm. This ruling clears the way for more workplace bias suits even if the damages may be questionable.
Specifically, the Supreme Court held that to make a Title VII discrimination claim, a transferee must show “some harm” respecting an identifiable term or condition of employment. What the transferee does not have to show, according to the relevant text, is that the harm incurred was significant, or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.
Employees must still tie the harm to some discriminatory motivation on the part of the employer, based on direct or circumstantial evidence, or both. Therefore, mandatory transfers of employees are now potential subjects of Title VII changes even if such transfers do not result in a decrease in pay or promotion opportunities.
Justice Alito stated that he believed this change from “material” or “substantial” or “significant” to “some” harm will not change the way these cases are litigated, and that judges will continue to “do pretty much just what they have done for years.”
Justice Kagan pointed out, however, that the bar for bringing a case has been lowered and that as a result, “many cases will come out differently.”
Employers need to pay closer attention to what an employee may think of a potential transfer to a new job, or a change in job responsibilities, even if there is no change in pay or reporting structure. If an employee may think of the transfer as a negative, the employer should assess the move for potential Title VII liability.
Employers must have open communication and actively listen to the needs and desires of employees before making actionable decisions. This may yield big savings down the line in the form of a Title VII lawsuit.