Boards of education have the managerial prerogative and the right, following a recommendation from the chief school administrator, to reassign or transfer a teaching staff member to another position within the school district. A transfer can be initiated with the consent of the teaching staff member, or it can occur over their objection.
On April 17, 2024, the Supreme Court issued a decision in connection with Muldrow v. City of St. Louis, Missouri, et al., which clarifies the level or degree of harm that an employee must plead and prove to establish that an involuntary transfer was discriminatory, and violated Title VII of the Civil Rights Act of 1964. Although the employee in Muldrow was not a teaching staff member, there are significant implications for all employers, including boards of education, when considering whether to initiate an involuntary transfer.
The relevant facts from Muldrow are as follows. From 2008 through 2017, Sgt. Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. In this position, she was responsible for, among other things: investigating public corruption and human trafficking cases; overseeing the Gang Unit; and serving as head of the Gun Crimes Unit. Because of her position, she was also deputized as a task force officer with the Federal Bureau of Investigation, and this allowed her to have “an unmarked take-home vehicle.”
In 2017, the new Intelligence Division commander (who referred to Muldrow as “Mrs.” rather than the customary “Sergeant”) asked to transfer her, so he could replace her with a male police officer who was a “better fit” for the “very dangerous work.” Over Muldrow’s objection, the Department approved the request and reassigned her to a uniformed job elsewhere in the department. While Muldrow’s rank and pay remained the same, her responsibilities, perks and schedule did not. For example, after the transfer, she no longer worked with high-ranking officials on department priorities, and instead supervised the day-to-day activities of neighborhood patrol officers; because she no longer served in the Intelligence Division, she lost her FBI status, and the take-home car that came with it; and instead of a traditional Monday through Friday workweek, she was placed on a rotating schedule that often involved weekend shifts.
Muldrow filed a Title VII suit challenging the transfer, and asserted that her employer, in ousting her from the Intelligence Division, discriminated against her based on her sex with respect to the terms and conditions of her employment. In connection with the litigation, Muldrow described the transfer as being transferred from a “premier” position into a less “prestigious and more administrative” uniformed role.
Following the filing of her complaint, the lower court granted the employer’s motion for summary judgment, finding that Muldrow “needed to show that her transfer effected a ‘significant’ change in working conditions producing ‘material employment disadvantage.’” Because Muldrow did not suffer a change in salary or rank, and the other alterations to her work responsibilities were not “significant,” the District Court reasoned that she could not satisfy the “heightened injury standard.”
The lower court’s decision was affirmed on appeal, and the Court of Appeals agreed that Muldrow had to, but could not, show that her involuntary transfer caused a “materially significant disadvantage.” In so ruling, the Eighth Circuit emphasized that the involuntary transfer “did not result in a diminution to her title, salary, or benefits,” and instead only resulted in “minor changes” to her working conditions.
The Supreme Court agreed “to resolve a circuit split on whether an employee challenging a transfer pursuant to Title VII must meet a heightened threshold of harm – be it dubbed significant, serious, or something similar.” Ultimately, the Supreme Court held that to establish a Title VII discrimination claim for an involuntary transfer, an employee must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant or satisfy a significance test. Per the Supreme Court, Muldrow only needs to show that the involuntary transfer “left her worse off but need not have left her significantly so.” Therefore, the Supreme Court remanded the matter for further proceedings.
Although the Supreme Court did not determine whether Muldrow had been discriminated against in violation of Title VII, it did note that if her allegations are “properly preserved and supported,” meaning that they could be proved with sufficient and credible evidentiary support, then Muldrow can “meet the test with room to spare.” In offering this observation, the Supreme Court stated:
Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over.
With the above in mind, Muldrow now makes it “easier” for employees, including teaching staff members, to prove a Title VII discrimination claim following an involuntary transfer. Even if a teaching staff member’s title, salary and benefits are not impacted by an involuntary transfer, if they can plead and prove that they suffered any harm with respect to an identifiable term or condition of employment, a discrimination claim may be meritorious. What will constitute “any harm” will be developed through case law, but query whether, based on the facts at issue in Muldrow, the following would be enough: a longer commute (to a different school building in the district); longer or different working hours; an earlier start or later end to the school day; a different population of students; a smaller classroom; a large class size (number of students); less in-class support; fewer or shorter prep periods; and/or longer intervals of instruction.
When considering the involuntary transfer of a teaching staff member, district administrators and boards of education are encouraged to speak with their board attorney to ensure, based on Muldrow, that the full extent of any potential “harms” to the employee are considered and analyzed. Vigilance and thoroughness with decision-making will help to deter the filing of litigation and, if so, to defend against it to the fullest extent possible.
Kathryn A. Whalen is legal counsel/HR at the New Jersey School Boards Association. She can be reached via email.
