By: Sandra L. Jacques, Esq., LL.M.
Can an employee succeed in a Title VII/NJLAD Discrimination Claim against an employer, if a staff member is involuntarily moved to a different position? In April of this year, the United States Supreme Court (SCOTUS) issued a Decision in Muldrow v. City of St. Louis, Missouri, 601 U.S. __ (2024), where a female police sergeant claimed that she was involuntarily transferred to a different position because she was a woman, and therefore had been discriminated against by the Police Department with respect to the “terms or conditions” of her employment. In rendering its ultimate finding in favor of the plaintiff, SCOTUS clarified the standard by which a staff member needs to prove that they were “harmed” as a result of the transfer, to substantiate a Title VII/NJLAD claim.
Sgt. Muldrow argued that from 2008 through 2017, she worked as a plainclothes officer in the Department’s specialized Intelligence Division. While in that position, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. She was deputized as a Task Force Officer with the FBI, which also granted her FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis.
In 2017, despite the recommendation of the outgoing Commander of the Intelligence Division to keep Sgt. Muldrow in the unit, the new Commander transferred her to a different position against her wishes, so that she could be replaced by a man. The new Commander referred to Sgt. Muldrow as “Mrs.” instead of her rank, like other male officers of the same rank, and stated that a male officer would be “a better fit” for the Division’s “very dangerous work”. Id. at 2.
Sgt. Muldrow argued that although her rank and pay remained the same after the transfer, she sustained harm by being “moved out of a premier position in the Police Department into a less prestigious and more administrative uniformed role.” Id. at 3. She no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division, but instead supervised the day-to-day activities of neighborhood patrol officers. She also lost her FBI status, access to an unmarked take-home vehicle, the ability to investigate cases outside of St. Louis, and had a less regular schedule involving weekend shifts. Id. at 2.
No Need to Prove Significant Harm Due to Transfer
The Trial and Appellate Courts had dismissed her Discrimination claim because she had not demonstrated a “significant loss” as a result of the transfer. In reversing the lower courts’ Decisions, SCOTUS held that “(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. Title VII’s text nowhere establishes that high a bar.” Id. at 1. Furthermore, “(t)he anti-discrimination provision … seeks a workplace where individuals are not discriminated against because of traits like race and sex … The provision thus flatly prevents injury to individuals based on status, without distinguishing between significant and less significant harms.” Id. at 9. “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.” Id. at 10.
In the Muldrow case, it appears that the employer believed that since the sergeant’s rank and pay remained the same after the forced transfer, all of the other “collateral effects” of the transfer on the employee were inconsequential. However, in its Decision, SCOTUS noted that “(t)he terms or conditions phrase … is not used in the narrow contractual sense, it covers more than the economic or tangible.” Id. at 6. To prevail in a Title VII claim, the employee must establish that she suffered a harm of some kind, as a result of the transfer, and that the harm does not need to be substantial.
Based upon the Muldrow standard, it is imperative that a School District consider and evaluate its rationale, as well as potential / actual effects of an involuntary transfer to the employee, beyond the issues of keeping a title and pay after the transfer is effectuated. It is a good idea to compare the required qualifications, job descriptions and benefits of each position to ensure that potential claims of “harm” by the transferred staff member are thoroughly considered.
Furthermore, a District must be able to prove with documentation, that such a transfer is necessary for the District due to a legitimate reason, and not because of the employee’s Protected Class Status (race, ethnicity, gender, disability, religion, LGBTQ status, etc.). The District must fastidiously document the legitimate , nondiscriminatory reasons (reduction in force, need for new assignment due to changing student enrollment, need for new assignment due to specialized endorsement, operational requirements, etc.) that led to the need to transfer, the employee, in order to successfully defend against a claim of discrimination.
Supreme Court Makes Link to School Transfer Cases
In the Muldrow Decision, SCOTUS also discussed how “a school principal … forced into a non-school-based administrative role supervising fewer employees” would be able to establish harm due to the transfer”. Id. at 7. See Cole v. Wake Cty. Bd. of Educ., 834 Fed. Appx. 820, 821 (CA4 2021). As SCOTUS noted, in the Cole case and other cases involving different employment contexts, the employee claims “were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.” Whether such a transfer would actually be a violation of Title VII or NJLAD would then be decided on a case-by-case basis as to whether the transfer was in fact due to the employee’s Protected Class status. If the District cannot identify specific non-discriminatory reasons for the transfer decision, it would lose in a discrimination lawsuit.
Prohibition on Disciplinary Transfers
District Board decisions to transfer an employee may be contested by the affected staff member. As per PERC’s holding in Holland Township BOE, PERC No. 87-43, 12 NJPER 17136 (October 1987), the Court will first examine the District’s intent regarding the transfer. If the transfer occurs to improve performance, it would be considered as a “non-arbitrable evaluation action”. If the transfer was not implemented to “enhance the performance of an employee”, then the action is considered disciplinary, and subject to arbitration.
Additionally, as per N.J.S.A. 34:13A-25, an employee cannot be transferred between work sites as a form of discipline. PERC has interpreted “between work sites” to mean from one building to another. However, Districts may transfer staff within buildings and between buildings for “educational reasons” and can use transfers within the same worksite as a form of discipline. If a Court determines that a transfer occurred as a disciplinary action (even if the School District did not label the transfer as being for disciplinary reasons), the District will lose the case, and be required to return the staff member to their original position and salary/benefits.
As per N.J.S.A. 34:13A-5.3, “arbitration is a favored means of resolving labor disputes.” N.J.S.A. 34:13A-29 states that “the grievance procedures negotiated between school boards and its unions shall be deemed to require binding arbitration as the terminal step with respect to disputes concerning imposition of reprimands and discipline…” Discipline includes “all forms of discipline” except tenure charges (N.J.S. 18A:6-10 et seq.) and increment withholdings (unless predominantly based upon discipline) (N.J.S. 18A:29-14).
Summary
In summary, Districts cannot transfer staff to a different building/worksite as a means of discipline and/or their protected class status. As per the Muldrow Decision, an employee need only prove that they suffered a negative impact of some kind, to establish the occurrence of harm as a result of the transfer. Therefore, the District must consider how a forced transfer could impact the employee beyond maintaining a title and/or monetary compensation. Additionally, it is crucial that a District be able to provide documentation establishing non-discriminatory, non-punitive, and/or performance-based reasons for transfers of staff.