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Earlier this year, the Supreme Court, in Muldrow v. City of St. Louis, made it easier for individuals to demonstrate they suffered an “adverse action” under Title VII. This decision may have significant implications for school districts and school boards.

Part of the Civil Rights Act of 1964, Title VII prohibits discrimination based on gender, race, religion, and national origin. To prove discrimination under Title VII, individuals must demonstrate not only that they had been treated differently based on one of these protected classifications, but also that they suffered an adverse action.

In the case of Muldrow v. City of St. Louis, Jatonya Muldrow was a police sergeant. She was transferred from a position as the head of the department’s intelligence division to a position of a uniformed sergeant. Although she retained the same rank, pay, and benefits, her responsibilities changed. Instead of overseeing the intelligence division prior to her transfer, her duties after were those of a shift sergeant. She suffered a change in status and lost access to a police vehicle. She went from having a regular weekly schedule with weekends off to a rotating schedule. She characterized the change as one from a “premier position” to a “less prestigious and more ‘administrative’ one.” However, her case was dismissed by the Federal District Court because, it held, these changes did not result in a “material employment disadvantage.” The Circuit Court of Appeals affirmed the dismissal.

The Supreme Court rejected the material disadvantage standard used by the District Court. Notably, many courts had required that the adverse action be “significant” or “material” or some other comparable standard. In rejecting this standard, the Supreme Court established a lower threshold, holding that an individual only show “some harm.” The Court had no issue concluding Muldrow met this standard even though she suffered no loss in rank or pay.

Education implications

For years, school districts have been able to argue that a transfer from one position to another that did not result in a loss of pay or other material change in a term or condition of employment was not an adverse action. That was grounds to seek dismissal of an individual’s claim. Following the Supreme Court’s decision, however, it is clear that the standard for showing “some harm” is extremely low.

The net result is that it is now easier for teachers, paraprofessionals, or other employees who are involuntarily moved from one school to another to show they suffered a sufficient level of harm to maintain a Title VII claim. Based on the Supreme Court’s decision, schools now need to consider the possibility of a discrimination claim before involuntarily transferring employees. Further, the Supreme Court’s analysis suggests that even a change in assignment or course assignment, e.g., teaching advanced courses rather than college preparatory level courses, may be sufficiently adverse to support a claim of discrimination.

Although it is now easier for an individual to demonstrate they suffered an adverse action, they still must demonstrate that the transfer was based on the individual’s gender, race, religion, or national origin. For this reason, schools should carefully evaluate the potential for a discrimination claim even when making employment decisions that do not have a monetary impact. Further, schools should, at a minimum, internally document their legitimate, nondiscriminatory reasons for such decisions. When in doubt, consult your district or school board lawyer.

Marc L. Terry (mterry@mirickoconnell.com), immediate past chair, Council of School Attorneys, is a partner at Mirick O’Connell, Westborough, Massachusetts.