Workplace DEI Worry Shouldn’t Overshadow a Civil Rights Victory

When we argued our client’s case, Muldrow v. City of St. Louis, before the Supreme Court Dec. 6, the growing narrative among court watchers about our client’s otherwise “under-the-radar” anti-discrimination case was that a decision favoring Jatonya Muldrow would apparently “gut workplace DEI initiatives.”

But, as the Supreme Court’s unanimous decision April 17 confirmed, that’s not what Muldrow’s case is about. At issue in Muldrow’s case is her story and the story of individuals like her—people suffering precisely the type of discrimination that Title VII of the Civil Rights Act was designed to stamp out. Fears that this case could affect workplace DEI programs shouldn’t overshadow a victory that goes to the heart of American civil rights law.

Muldrow maintains that the St. Louis Police Department changed her job wholesale because of her sex. But she found herself without a legal remedy because, for decades, courts have required Title VII plaintiffs to prove not only that they’ve been discriminated against at work, but also that the discrimination harmed their career prospects or their pocketbook.

Muldrow’s claim and the claims of others like her had been historically “rejected,” as Justice Elena Kagan explained for the court, “solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.”

Think about that for a minute: Courts all over the country have been holding that under Title VII—one of the most important civil-rights laws ever enacted—it’s legal to change an employee’s job because they’re a woman or Black or Muslim or Asian American or Catholic.

Under this pernicious doctrine, courts have been behaving like their hands are tied when an employer discriminates as to when, where, and with whom you work, or as to your job tasks, or whether you receive the same training or equipment as your peers.

In Muldrow’s situation, the allegedly sex-based job transfer affected her schedule, responsibilities, supervisor, workplace environment, and other important job benefits tied to workplace advancement—for example, she previously reported directly to the chief of police. But Muldrow’s salary remained the same, so the lower courts tossed her case, maintaining that the discriminatory job transfer caused her no “significant disadvantage.”

For several years, we’ve been representing clients like Muldrow—clients who have suffered subordinating discrimination but who couldn’t obtain relief because they purportedly couldn’t demonstrate to a court that the discrimination harmed them significantly.

Take what happened to a different client of ours—Captain Reginald Anderson—as an example of just how difficult it had become before the court’s intervention for individuals facing workplace discrimination. Anderson is an Emergency Medical Service supervisor in Cleveland, Ohio, who has worked for the city since 1992. He is Black and, along with other Black EMS employees, alleged that he had long faced discrimination at work.

We met Anderson when, after nearly two decades working the day shift, he was abruptly transferred to working nights. The reason? His race. When a union steward confronted the city about the race-based assignment system, leadership threw around terms “about strength and weakness, lazy and stupid,” according to a supervisor’s deposition testimony.

If the captains had any doubts about “which race” the city was implying “is the lazy one, which race is stupid,” they got their answer when they learned that although the city wouldn’t tolerate shifts comprised only of Black captains, the city made no effort to break up all-white shifts, according to testimony.

Anderson and the other Black captains whose schedules were controlled by the city’s discriminatory policy filed suit under Title VII. Despite the overwhelming evidence of workplace discrimination, that court held, under the rule that the Supreme Court overturned April 17, that the discrimination didn’t violate Title VII because it didn’t sufficiently harm Anderson and others. The Sixth Circuit reversed the trial court’s decision, but it had to look past nearly unanimous nationwide precedent to reach that result.

The Supreme Court’s decision makes clear that employers can’t change the parameters of a job because of race, sex, or any of Title VII’s other protected characteristics.

For various reasons, we’re quite skeptical that the court’s decision has any genuine, legal ramifications on thoughtful efforts to create workplace equity through DEI initiatives. And no justice left even a bread crumb suggesting otherwise.

Even if it were true that the Muldrow decision leads to a flood of coordinated claims seeking to end mentoring and training programs for underrepresented groups or undermining other DEI initiatives, it can’t be that employees like Muldrow and Anderson who faced subjugating discrimination were simply supposed to grin and bear it. Were they supposed to endure sex-based job transfers, discriminatory night shifts, or the like just to avoid giving anti-DEI interest groups the opportunity to press for a less equitable society?

Having won a hard-fought battle to overrule decades-old, terrible precedent, people like Jatonya Muldrow who suffered under that precedent and fought to dismantle it deserve a moment’s celebration and recognition before they get back to work.

The case is Muldrow v. City of St. Louis, US, No. 22-193, decided 4/17/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Madeline Meth is an associate clinical professor at Boston University School of Law and co-counsel for petitioner Jatonya Muldrow.

Brian Wolfman is a professor from practice at Georgetown University Law Center and director of the Appellate Courts Immersion Clinic. He is co-counsel for petitioner Jatonya Muldrow and argued the case before the Supreme Court.

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