This past Wednesday, the justices of the U.S. Supreme Court heard a case filed by a female police sergeant who accused her St. Louis department of workplace discrimination. Her claim, which is being supported by the Biden administration, has the potential of making a profound change in federal enforcement of anti-discrimination laws.
The original claim was filed by Sergeant Jatonya Clayborn Muldrow, who filed suit against the St. Louis police department after being transferred out of the intelligence division in 2017 despite having a reputation as a “workhorse.” Though the transfer did not affect her compensation, it made significant changes in her schedule and her potential for advancement. Where her previous role had carried the prestige of investigating public corruption and human trafficking cases, her new position assigned her to working patrol. She went from a steady weekday schedule to having to work weekend shifts, and the change of responsibilities meant that she lost her ability to be deputized as an FBI agent.
Notably, when Sergeant Muldrow was transferred out of her position, a male sergeant who had previously worked with her male supervisor took her place. Her claim also noted that her supervisor consistently referred to male sergeants by their rank, but only referred to her as “Mrs.”
The case rose to the level of being heard by the Supreme Court following a decision made by the District Court judge in Missouri, who rejected her claim because he said she had not proven that her transfer had caused sufficient disadvantage to rise to the level of workplace discrimination. She appealed the decision and the U.S. Court of Appeals for the 8th Circuit reached the same conclusion, saying that she had not proven that the transfer represented an “adverse employment action” that caused tangible harm.
Title VII prohibits discrimination against employees based on protected characteristics such as sex, race, and religion. Sergeant Muldrow maintains that the transfer was discriminatory against her based on her sex and that it shouldn’t matter whether the job transfer caused a significant disadvantage such as a change in salary or rank. The justices need to determine whether she is correct in her position that the transfer being discriminatory is enough for her to take legal action.
According to court watchers, the justices’ questions of attorneys on both sides of the issue suggest that they view discrimination on its own as an injury and that it is inappropriate for a victim to have to prove how much they had suffered or to ask a judge hearing a discrimination claim to weigh that question. Justice Neil M. Gorsuch commented, “When you treat someone worse than another person because of race or sex, that’s kind of the end of it, and there isn’t a further inquiry into how badly you treated somebody.”
His colleagues also questioned the police department’s attorney, with Justice Brett Kavanaugh noting that the department’s position was that “discrimination itself is not harm,” and Justice Ketanji Brown Jackson further probing this point by asking, “So discrimination itself is or is not a harm?”
One justice, Samuel A. Alito, Jr., seemed to think that some type of standard needed to be applied before a claim could be litigated. His point and other questions were answered by Aimee Brown, an assistant to the solicitor general, who said, “When an employment decision is made on the basis of a protected characteristic, that is the denial of equal treatment, and that’s a harm that this Court has recognized in many cases.”
While some civil rights groups have expressed concern that a ruling in Sergeant Muldrow’s favor could be used in support of reverse discrimination claims, Ms. Brown responded by pointing out that Title VII explicitly permits efforts to ensure a diverse workforce through recruiting, mentorship, and other programs.
While the justices weigh the merits of both sides’ arguments, employment attorneys say that requiring a separate showing that a workplace reassignment caused significant damage makes it too easy for discrimination to take place and too hard for employees to take action.
If you believe that you have been the victim of an adverse workplace action or employment discrimination, contact us today. We are committed to protecting employ