ees from engaging in or advocating for conduct contrary to the moral tenets of the Catholic faith, including the Catholic Church’s rejection of same-sex marriage.Billard, who is gay, taught English and drama class as both a full time and substitute teacher, and appeared to be an excellent and beloved teacher. He posted on Facebook in 2014 that he and his partner were engaged to be married. When CCHS learned of his engagement, it opted not to invite back as a teacher and concluded that his plans to marry a same-sex partner violated the diocese’s policy against engaging in conduct contrary to the moral teachings of the Catholic Church.Notably, at the trial level CCHS stipulated that it would not pursue the ministerial exception because it believed that Billard would not qualify as a ministerial employee and, at the trial level at least, waived that affirmative defense. Title VII bans employment discrimination “because of” an “individual’s race, color, religion, sex, or national origin” (42 U.S.C. §2000e-2(a)). Certain religious organizations are exempted, but the exemption has been understood to only apply to claims of religious discrimination, not claims of race or sex discrimination, so it was not the basis of the court’s opinion.After both parties filed motions for summary judgment, the trial court found in Billard’s favor holding that it was a “classic case of sex discrimination” where CCHS fired Billard because of his plans to marry his same-sex partner.RulingOn appeal, the Fourth Circuit reversed the trial court’s ruling based on the ministerial exception. Even though CCHS appeared to have waived the ministerial exception at the trial level, the Fourth Circuit exercised its discretion to revive the defense and based its holding on the doctrine. The ministerial exception to Title VII application operates structurally to “categorically prohibit[] federal and state governments from becoming involved in religious leadership disputes” by “exempting from legal process ‘decisions of religi

e: (1) Muldrow experienced no change in salary or rank; (2) Muldrow provided no evidence that the alleged loss of networking opportunities available in the Intelligence Division harmed her career prospects; and (3) the new rotating schedule and the loss of a take-home vehicle could not “fill the gap.”On appeal from the district court, the Court of Appeals for the Eighth Circuit affirmed, agreeing that Muldrow had to, but could not, show that the transfer caused a “materially significant disadvantage.”DecisionThe U.S. Supreme Court reversed the Eighth Circuit and rejected the notion that employees must show a “significant” harm to maintain a Title VII claim.The Court began with the plain language of Title VII, which prohibits an employer “to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to [] compensation, terms, conditions, or privileges, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1).Based on the plain language, the Supreme Court explained that the language of Title VII requires only that plaintiffs show that “the transfer brought about some ‘disadvantageous’ change in an employment term or condition.” In other words, “a transferee must show some harm respecting an identifiable term or condition of employment.” Nowhere does Title VII require a transferee (or any plaintiff) to show 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.”Accordingly, Muldrow needed only to show that the transfer left her “worse off,” but not “significantly so.” The Court continued that Muldrow’s allegations, if properly supported, met the clarified standard “with room to spare.”Key TakeawaysUnder Title VII, a discriminatory job transfer is actionable if the transfer resulted in some harm with respect to an identifiable term or condition of employment.The harm suffered

ary judgment for the city of St. Louis and settled a split among federal circuit courts, including the Second Circuit, which required plaintiffs to show significant harm from a job transfer. Muldrow is the second unanimous decision by the Supreme Court in recent months on matters of employment law. In February, the Court ruled in Murray v. UBS (discussed in a prior alert) that plaintiffs bringing whistleblower retaliation claims under the Sarbanes-Oxley Act of 2022 do not need to prove that their employers acted with retaliatory intent. These two decisions demonstrate a rare alignment among the justices in taking a textualist approach to the interpretation of employment laws. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). At issue in Muldrow was whether the plaintiff’s job transfer from a plainclothes officer in the police department’s Intelligence Division to a uniformed job supervising patrol officers constituted unlawful discrimination regarding the “terms [or] conditions” of her employment on the basis of her gender. The district court granted summary judgment to the city, holding that the plaintiff could not show that her transfer effected a “significant” change in working conditions and thereby produced a “material employment disadvantage,” because she experienced no change in salary or rank and she had conceded that the transfer did not harm her career prospects. The Eighth Circuit affirmed. For decades, other circuit courts have similarly applied a materiality standard for evaluating whether a plaintiff proved that a job transfer caused an adverse action under Title VII.The Supreme Court opinion, written by Justice Elena Kagan, holds that plaintiffs do not need to show that a job transfer cons

[co-author: Chelsea Desruisseaux]IntroductionOn April 17, 2024, the Supreme Court decided Muldrow v. St. Louis, No. 22‑193, holding that Title VII of the Civil Rights Act of 1964 prohibits discriminatory job transfers that cause “some harm” with respect to the terms, conditions, or privileges of employment, but the harm need not be “significant,” as the lower court in that case had required.BackgroundTitle VII prohibits discrimination in the “terms, conditions, or privileges of employment” because of an individual’s race, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Sergeant Jatonya Muldrow with the St. Louis Police Department argued that her eight-month transfer out of the Department’s Intelligence Division constituted sex discrimination within the meaning of Title VII, even though she had not suffered any economic damages as a result of the transfer.Muldrow brought a Title VII gender discrimination suit against the City of St. Louis, alleging that the position to which she was transferred was less prestigious and affected her work schedule, overtime pay structure, and work attire. She further alleged that her former intelligence position was filled by a male employee and no male sergeants had been transferred out of her division. The federal district court dismissed her discrimination claim, finding she had failed to establish harm resulting from the transfer. The U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal, holding that the transfer was not an adverse employment action because it did not result in a “materially signifi

iff for the “very dangerous” work of the Intelligence Division. Although the plaintiff retained the same rank and salary, she alleged that the new position was less prestigious and more of an “‘administrative’ uniformed role,” resulting in fewer opportunities to work on important investigations and network with commanding officers. The plaintiff also alleged the loss of certain material benefits, such as the transition from a standard 9 am to 5 pm Monday to Friday schedule to a rotating schedule that resulted in regular weekend shifts and the loss of use of an unmarked take-home car.The plaintiff alleged that the lateral job transfer was due to her sex, in violation of Title VII, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Specifically, she alleged that by moving her to a new division her employer discriminated against her based on her sex with respect to the “terms” and “conditions” of her employment.The U.S. District Court for the Eastern District of Missouri granted summary judgment in favor of the defendant, the City of St. Louis and the U.S. Court of Appeals for the Eighth Circuit, following Eighth Circuit precedent, affirmed that decision, holding that the plaintiff could not show the lateral transfer caused a “materially significant disadvantage” because her title and pay had stayed the same and the transfer caused “only minor changes in working conditions.”Holding The Supreme Court vacated the lower court’s summary judgment decision and remanded the case for further proceedings consistent with its opinion. Critically, the decision rejects the position adopted by the Eighth Circuit and a majority of the other U.S. Circuit Courts of Appeal that a transferred employee must show that the harm incur

.The U.S. Supreme Court rejected a heightened threshold approach adopted by the U.S. Court of Appeals for the Eighth Circuit and other circuits.InMuldrow v. City of St. Louis, Missouri, a unanimous U.S. Supreme Court held on April 17, 2024, that an employee bringing a claim for discrimination under Title VII related to a job transfer need only show some employment disadvantage resulting from the transfer but need not show a "significant" disadvantage. In issuing its ruling, the Court resolved a circuit split regarding the threshold for harm necessary to maintain a Title VII claim related to a job transfer.The opinion of the Court focused on the statutory text of Title VII. Under Title VII, it is prohibited for an employer "to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. §2000e-2(a)(1). In its ruling, the Court determined that the relevant text of the statute requires a transferee to "show some harm respecting an identifiable term or condition of employment," but the transferee does not have to show that "the harm incurred was 'significant' … [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar." 601 U.S. 6 (2024).Complaint AllegationsJatonya Clayborn Muldrow worked as a plainclothes officer in the specialized Intelligence Division of the St. Louis Police Department from 2008 to 2017. During the course of her employment in the Intelligence Division, Muldrow investigated high-profile matters, including public corruption and human trafficking. Additionally, due to her position in the Intelligence Division, she was deputized as a task force officer with the FBI, which granted her bureau credentials, an unmarked take-home vehicle and the authority to pursue investigations outside of St. Loui

fter Texas removed the lawsuits to federal court, the Fifth Circuit dismissed the claims, holding that the Takings Clause alone does not provide a cause of action to sue a state. In a 9-0 opinion authored by Justice Thomas, the Court determined that it need not resolve the question of whether the Takings Clause alone creates a cause of action because the landowners in this lawsuit can pursue their claims for just compensation under a Texas state law.View the Court's decision.Today, the Court issued an additional two decisions:Muldrow v. City of St. Louis, No. 22-193: This civil rights and employment law case addresses the scope of Title VII protections against alleged discriminatory conduct arising from job transfers. The petitioner, Sergeant Jatonya Clayborn Muldrow, claims her employer transferred her from one job to another because she is a woman. She filed a Title VII suit, alleging that she suffered sex discrimination with respect to the “terms [or] conditions” of her employment. 42 U.S.C. §2000e–2(a)(1). The lower courts rejected Muldrow’s claim because the transfer did not cause her a “significant” employment disadvantage. Today, in an opinion authored by Justice Kagan, the Court reversed and “disapprove[d]” of the “significant” employment disadvantage standard for addressing Title VII suits arising from job transfers. As the Court explained, “[a]lthough an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.” Three justices—Thomas, Alito, Kavanaugh—filed separate opinions concurring in the judgment.View the Court's decision.McIntosh v. United States, No. 22-7386: This case involves the procedural requirements for criminal forfeiture. Federal Rule of Criminal Procedure 32.2(b)(2)(B) generally requires that a preliminary order of forfeiture be entered prior to sentencing to provide an opportunity to revise the order before it is finalized. In this case, the government’s indictment included

e was transferred from the department’s Intelligence Division to a uniformed role in one of the department’s police districts. Notwithstanding the fact that Sergeant Muldrow (whom her former supervisor addressed as “Ms.” rather than “Sergeant”) was a most dependable “workhorse” on the job, the supervisor determined that Muldrow’s position was somehow too dangerous for a woman, and so, against her protest, Muldrow was reassigned.Where she had been working with high-ranking officials on high-priority police matters, Muldrow now supervised the day-to-day activities of neighborhood patrol officers. However, while her responsibilities, perks, and schedules were now different, including having lost a deputized role with the FBI and the car that came with it, Sergeant Muldrow’s rank and pay remained the same.Muldrow brought a Title VII suit against the department, which she claimed had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. 42 U. S. C. §2000e–2(a)(1).The lower courts rejected the claim on the ground that the transfer did not cause Muldrow a “significant” employment disadvantage. That holding reflected a split in the circuits concerning the standards used in addressing Title VII suits arising from job transfers. Reversing the holding of the U.S. Court of Appeals for the Eighth Circuit, the Supreme Court flatly and unanimously rejected that high standard.Writing for six Justices, Justice Kagan announced that, although an employee must showsomeharm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test. “Title VII’s text nowhere establishes that high bar. Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so.” In separate concurring opinions, Justices Thomas, Alito, and Kavanaugh agreed with Justice Kagan as to the outcome but suggested that the Court had do

(more commonly referred to as a diverse slate initiative) in an effort to ensure that members of underrepresented groups are considered for job openings.DEI Comes Under FireHowever, employer DEI programs are facing new questions following the SFFA decision. While the decision was specifically focused on higher education admissions, the decision’s Court’s reasoning could influence the interpretation of similarly worded nondiscrimination provisions in employment laws, namely Title VII (employment) and Section 1 of the Civil Rights Act of 1866 (42 U.S.C. § 1981) (race discrimination in contracting).Shortly after the SFFA decision, EEOC Commissioner Andrea Lucas authored an article expressing the view that the decision could implicate a range of common employer DEI initiatives, specifically calling out “selecting interviewees partially due to diverse candidate slate policies.”In this context, AFL alleged in its EEOC investigation request that the Rooney Rule “facially violates” Title VII (42 U.S.C. §§ 2000e-2(a) and (d)) because given the limited time teams have to make hiring decisions on coaches has led to “sham interviews” and resulted in “fewer opportunities for similarly situated, well-qualified candidates who are not minorities.”AFL alleged “[i]t is abundantly clear that the NFL and its member teams do indeed limit, segregate, or classify their employees or applicants for employment in ways that deprive at least some individuals of interview and employment opportunities specifically because of race, color, or sex,” notably referencing a little-used section of Title VII (§ 2000(e)(2)(a)(2)) that prohibits “limit[ing], segregat[ing], or classify[ing]” employees and applicants for employment. There is limited authority interpreting the meaning of this section, though it facially appears to cover a broad range of conduct.AFL also alleged that other NFL programs beyond the Rooney Rule, such as the leadership programs for women of color and its program for the development of game officials fr

fically declined to say whether giving Mr. Groff Sundays off constitutes an undue hardship for the employer (which was the U.S. Postal Service) and instead referred the case back to the lower federal courts to address this issue. In so doing, the Supreme Court said that it was not necessarily adopting the case law under the ADA as to what amounts to an undue hardship, leaving this analysis to future decisions involving religious accommodations in employment.Mr. Groff, like Mr. Hardison, was covered by a union agreement with seniority provisions on which employees would be assigned weekend work. It remains to be seen how the upcoming court decisions will balance seniority rights and undue burden issues. In this regard, the wording of Title VII does not limit consideration of seniority to union represented employees (e.g., where the seniority rights are a contractual entitlement under a collective bargaining agreement). The statute only refers to a “bona fide seniority or merit system.” 42 U.S.C. § 2000e-2(h). Thus, the rulings should be the same regardless whether the employee involved is covered by a labor agreement, as long as a bona fide seniority or merit system concerning scheduling/work assignment is in place.The bottom line is the longstanding lenient requirements on employers for religious accommodation in the workplace are out. More is required before an employer can establish an undue hardship defense. The parameters of this will be worked out in future cases. Past lower court decisions addressing religious discrimination not only permitted employer defenses of more than modest costs but often (though not always) also held that employers need not abandon or disrupt their efficiency or stylistic practices (e.g., required uniforms) in light of religious accommodation requests. It appears likely that less deference will now be given to such employer standards in the religious accommodation analysis. Employers should take care to be ready for these situations and get good advice whe