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Jeremy V. Farrell

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Deputy Chair, Litigation Department

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Is the Supreme Court about to expand employer liability under Title VII, and could its decision hamper DEI initiatives?

Jeremy V. Farrell, Esq., jfarrell@tuckerlaw.com, (412) 594-3938

To prevail on a discrimination claim under Title VII and similar anti-discrimination laws, the employee bringing suit must prove that he or she suffered an “adverse employment action” because of a legally protected characteristic—such as race, sex, or religion. Historically, courts have ruled that an employment action is “adverse” enough to support a lawsuit only if it significantly disadvantages the employee. 

A case before the Supreme Court could lower that standard, thereby subjecting employers to discrimination claims for a far broader array of decisions made in the workplace.  

The case is Muldrow v. City of St. Louis. Sergeant Jatonya Muldrow worked for the St. Louis Police Department. She was initially assigned to the Intelligence Division, where she worked on high-profile cases, including on ones involving public corruption, human trafficking, and gang violence. For a time, she was also deputized to work alongside the FBI.

A few years ago, a new police commissioner instituted various staffing changes throughout the department. Sergeant Muldrow was one of the employees affected. She was forced into a lateral transfer to a new division, where she was responsible for supervising patrol officers and responding to service calls involving a variety of serious crimes. A male employee stepped into her prior role.

The transfer did not impact Muldrow’s rank or salary. It did require that she take on different job responsibilities, work a different schedule, and wear different types of clothes to work. The new role also had fewer overtime opportunities. While she was unhappy with the transfer, it does not appear that Sergeant Muldrow argued any of the individual changes to her job were in themselves significantly disadvantageous. 

Yet believing her transfer to have been motivated by her sex, Sergeant Muldrow challenged the transfer in court. The lower courts ruled against her, finding that the transfer was not significant enough to support a discrimination claim. 

Somewhat surprisingly, the Supreme Court agreed to hear the case on appeal. While the issue framed by the Court is whether Title VII prohibits discrimination in transfer decisions where there is no separate court determination that the transfer significantly disadvantaged the employee, the case boils down to what type of workplace actions an employee will be able to fight in court moving forward.

A decision is expected within the next few months, with many forecasting a win for Sergeant Muldrow based on the Justices’ questions at oral argument.

A win for Muldrow could come in a few different shapes. The Court could issue a narrow decision, limited only to lateral transfer decisions,or it could rewrite the legal standard in a way that carries far-reaching implications for employers around the country. Legal challenges could be filed to poor performance reviews, performance improvement plans, or undesirable job duties, schedules, or supervisory assignments—things that historically could not give rise to discrimination claims.

Some have gone so far as to speculate that if the Court were to adopt a looser standard of what constitutes an adverse employment action, that could lead to challenges to some DEI initiatives through “reverse discrimination” claims. The reasoning is that, if employees are no longer required to prove that an employment decision is significantly disadvantageous in order to bring a discrimination, then there may be a new legal basis to challenge certain subsets of DEI programs that, for example, offer tangible benefits or that are limited to underrepresented groups or specific demographic thresholds.

Considering its potential implications, employers are wise to keep tabs on the Court’s decision and consult with their attorney about how its holding impacts their human resources policies and processes.

For questions or information, contact Jeremy Farrell at (412) 594-3938 or click here for more information about Jeremy.

February 20, 2024

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