The Supreme Court heard on Dec. 6 the case of a Missouri police sergeant who argues that a city illegally discriminated against her by giving her a lateral job transfer she didn’t want.
Jatonya Clayborn Muldrow of the St. Louis Police Department claims that she was forced out of the intelligence unit, transferred to a less prestigious job she didn’t like, and denied a requested transfer because she is a woman, leaving her in a dead-end job, although it has the same pay as her previous position.
During the oral argument in Muldrow v. City of St. Louis (court file 22-193) on Dec. 6, the court examined what protections Title VII of the Civil Rights Act of 1964 provides an employee who claims that she was the victim of a discriminatory transfer.
That statute makes it illegal for a private employer or a state or local government “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.”
On June 30, the court announced that it would consider the following question in the case: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?”
Civil rights advocates are watching the case because, in their view, otherwise valid workplace claims often get tossed by courts because employees have to show that their employers’ actions harmed them, and they think a ruling for Ms. Muldrow could change that.
The Biden administration takes the position that Congress didn’t intend to impose such a proof of harm requirement in lawsuits involving job transfers.
Conservatives have said that if the court sides with Ms. Muldrow, there could be an increase in discrimination claims filed based on workplace DEI—diversity, equity, and inclusion—programs. The frequency of such lawsuits has been increasing since the Supreme Court overturned affirmative action in university admissions earlier this year in the case of Students for Fair Admissions v. Harvard.
From 2008 to 2017, Ms. Muldrow worked as a sergeant in the St. Louis Police Department’s intelligence division on public corruption and human trafficking cases. She was also head of the gun crimes unit and oversaw the gang unit. She had considerable experience with violent crime and was known as a “workhorse,” her petition stated.
In the lead-up to the transfer ordered by her supervisor, Ms. Muldrow noticed that in front of her, her supervisor addressed similarly situated male officers according to their rank but refused to do so with her. He told sergeants in the intelligence division that he didn’t believe in “blind transfers”—that is, compelling the transfer of an employee without discussing the matter first with the employee. But without warning, he transferred her to the department’s fifth district, claiming that he did so because the role she had been in for the previous 10 years was too “dangerous.”
The supervisor replaced Ms. Muldrow with a male officer and transferred the other two female officers in the intelligence division. Her pay remained the same, but her schedule, responsibilities, workplace environment, and other job requirements and benefits changed dramatically.
Ms. Muldrow sought a new position within the department as an administrative aide to a captain, but her request was denied.
She sued in state court. The department had the case removed to the federal district court in the Eastern District of Missouri, which granted summary judgment to the department, finding that under U.S. Court of Appeals for the 8th Circuit precedent, a discriminatory transfer that doesn’t “produce a material employment disadvantage” is “not an adverse employment action.”
The 8th Circuit then ruled against Ms. Muldrow, finding that the forced transfer and refusal to transfer weren’t actionable under Title VII as “adverse employment actions.”
Ms. Muldrow’s attorney, Brian Wolfman, told the justices that his client was transferred from one part of the police department to another “because she’s a woman.”
“That’s sex discrimination, and it’s unlawful under the plain terms of Title VII.”
“A lateral transfer changes the terms, conditions, or privileges of employment,“ Mr. Wolfman said. ”After all, a transferred employee cannot show up the next day and do her old job. Her job tasks have changed, and that’s the most basic term of employment.”
The transfer was illegal because she received “worse treatment because of a protected characteristic.”
Justice Samuel Alito seemed skeptical, saying that some forms of disparate treatment are benign but that “all disparate treatment based on race, sex, et cetera, is wrong.”
But the courts have still found there needs to be “some sort of threshold” before it gets into court, he said.
Mr. Wolfman urged the Supreme Court to reverse the 8th Circuit ruling and allow his client to prove her claims in court.
Attorney Aimee Brown of the U.S. Department of Justice told the justices that “forcing an employee to transfer because she is a woman is discriminating against her with respect to the terms and conditions of employment under Title VII regardless of whether one position is significantly worse than the other.”
“That’s the plain meaning of the text, and it’s consistent with this court’s longstanding precedents, which recognize that the statute strikes at the entire spectrum of disparate treatment in employment.”
Justice Sonia Sotomayor seemed sympathetic to Ms. Muldrow.
“I have a very hard time understanding how courts are thinking that switching somebody from a day to a night job or a Monday-through-Friday job to a rotating week-long job where you’re not getting any weekends off anymore is not a significant disadvantage.”
The city’s attorney, Robert Loeb, said the civil rights law doesn’t cover the facts of the situation here.
“The language used in the statute doesn’t say ‘discriminate between’ or ‘discriminate with respect to.’ It says ‘discriminate against,’ and that language, as used in Title VII, requires not just differential treatment but ... specifically significant material objective harm.”
Justice Elena Kagan said Mr. Loeb is arguing that “there has to be an additional showing of harm.”
“We recognize you say that harm doesn’t really have to be material.”
“So now a court is going to have to ... wander around going, ‘Well, how big is this harm and is it really stigmatizing or is it only a little bit stigmatizing.?’ And that sounds both like something that you don’t want any court to do and also something that the statute does not suggest,” Justice Kagan said.
The oral argument was the last before the court adjourned for its winter recess. The court will meet for its next oral argument on Jan. 8, 2024.
A decision in Muldrow v. City of St. Louis is expected by June 2024.
