Justices to Mull Harm Needed for Suits Over Biased Job Transfers

The US Supreme Court will consider expanding job bias protections in a case involving a former St. Louis police sergeant’s claims that her forced transfer out of the intelligence unit and denial of her later transfer request was illegal sex discrimination.

During oral argument Wednesday, counsel for Jatonya Clayborn Muldrow will challenge a lower court ruling that tossed her lawsuit against the city because the personnel decisions weren’t adverse employment actions covered by federal anti-discrimination law.

Neither the transfer nor the denial created a “materially significant disadvantage” and thus couldn’t support job bias claims, a panel of three US Court of Appeals for the Eighth Circuit judges appointed by Republican presidents found. Muldrow’s title, pay, and benefits remained the same, while her working conditions weren’t substantially changed, the panel said in April 2022.

The case pits the interests of workers seeking protection from discriminatory job transfers against those of companies that want to avoid litigation over personnel decisions. That’s the type of dispute that would seemingly give business interests an edge in a Supreme Court firmly under the control of justices appointed by Republican presidents.

But at least one member of the court’s conservative majority might be on Muldrow’s side. Before becoming a justice, then-D.C. Circuit Judge Brett Kavanaugh advocated overturning circuit precedent that held employers can’t be liable under Title VII of the 1964 Civil Rights Act for denying or forcing a lateral transfer unless the worker shows a pay reduction or other “objectively tangible harm.”

Kavanaugh called for an en banc court to establish that all discriminatory transfers and transfer denials should be actionable under Title VII in his concurring opinion to a 2016 D.C. Circuit decision.

“As I see it, transferring an employee because of the employee’s race (or denying an employee’s requested transfer because of the employee’s race) plainly constitutes discrimination with respect to ‘compensation, terms, conditions, or privileges of employment’ in violation of Title VII,” he wrote. “I look forward to a future case where our Court says as much.”

The en banc D.C. Circuit did just that six years later, striking down its 1999 precedent that had established its tangible harm requirement for allegedly biased transfers. That ruling came two months after the Eight Circuit threw out Muldrow’s lawsuit against the city of St. Louis.

The split also involves the Fourth, Seventh, Tenth and Eleventh circuits, which have imposed an elevated harm requirement for allegedly biased transfers, and the Sixth Circuit, which has not.

Narrowed Focus

Muldrow originally sought review on a broader Title VII question, asking the Supreme Court to weigh whether workers have to show a materially significant disadvantage to sue over any biased employer conduct. The Biden administration backed her bid for review on that more expansive issue.

But the justices restricted the case to only the harm requirement for transfers.

Narrowing the issue leaves out biased employer decisions on topics like when and where employees work, which job functions they’re required to perform, and discipline that doesn’t immediately result in docked pay or other serious consequences, said Sandra Sperino, a discrimination law professor at the University of Missouri.

But it also eliminates the need for the justices to define what’s the most minimal conduct that would cross the threshold of being actionable under Title VII, saving them from addressing the “parade of horribles” that might follow having no harm requirement for any discriminatory workplace decision, she said.

“You can imagine, for example, a case when a supervisor didn’t say happy birthday because of a worker’s protected trait,” Sperino said. “The court changed the question presented to avoid that de minimis question.”

Still, lower courts would likely reason by analogy that a broader set of employment actions would be covered when there’s no material injury if the Supreme Court makes clear that Title VII doesn’t impose an elevated harm mandate for biased transfers, she said.

Text to the Front

Both Muldrow—with the support of the US Solicitor General’s Office—and St. Louis lead with arguments based on different words in the same Title VII section that shields workers from “discrimination against” people with respect to their “terms, conditions, or privileges of employment.”

Muldrow keyed in on the law’s protections for biased changes to job terms and conditions.

“Through a game of telephone, Title VII’s straightforward text has become so distorted that, in most parts of the country, an employer may transfer an employee to an entirely different job because of the employee’s race or sex and the employee has no means to remedy this employment discrimination,” said Madeline Meth, a law professor at Boston University and co-counsel for Muldrow.

Muldrow’s “terms, conditions, or privileges” of her job were changed after the transfer out of the intelligence unit to a beat-cop position, as she had to step away from her investigations, wear a police uniform, and drive a squad car, Meth said. The only thing left for Muldrow to prove is whether St. Louis transferred her because of her sex, she said.

St. Louis, on the other hand, focused on the words “discriminate against” in the Title VII section. The Supreme Court has long understood that phrase to mandate suffering objective harm, the city said.

“The statutory phrase itself compels that harm requirement,” the city said in its brief.

St. Louis City Counselor Sheena Hamilton didn’t respond to requests for comment. The city is also represented by attorneys from Orrick Herrington & Sutcliffe LLP.

The case is Muldrow v. City of St. Louis, U.S., No. 22-193, oral argument scheduled 12/6/23.