The Supreme Court Issues Narrow Ruling in Title VII Case, Muldrow v. City of St. Louis

In the case, Jatonya Muldrow—a sergeant with the St. Louis Police Department—challenged her involuntary transfer from one division to another, arguing that she was transferred solely on the basis of sex. Though her compensation and formal rank remained unaffected, Muldrow claimed that her transfer led to altered scheduling and responsibilities. The Eighth Circuit held that the impact of this transfer was not “significant” and thus that the transfer was “insufficient to constitute an adverse employment action.”^[4] Based on the plain text of the statute, the Supreme Court reversed that decision, finding that “[t]here is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm.”^[5] Because the Supreme Court found the Eighth Circuit applied the incorrect legal standard by requiring a showing of more significant harm, it vacated the opinion and remanded the case, instructing the lower courts to apply the correct legal standard.^[6]

The most obvious result of the Supreme Court’s opinion is that it will reduce the threshold for bringing a Title VII action in the circuits that have, until now, required a heightened showing of harm.^[7] However, by requiring the plaintiff to show some harm, the Supreme Court’s opinion is narrow. Indeed, Justice Kavanaugh in concurrence would have gone further—arguing that under Title VII “[t]he discrimination is harm” and thus nothing more than a discriminatory employment action need be shown.^[8] The distinction between what the majority held, and what Justice Kavanaugh would have held, is significant. Most important, because there need be showing of “some” harm as opposed to simply differential treatment, the case does not appear to give the green light to reverse discrimination claims seeking to challenge any number of employer diversity, equity, and inclusion (“DEI”) programs that do not result in harm or disadvantage to any employee. Andrea R. Lucas, an Equal Employment Opportunity Commission (“EEOC”) Commissioner, had publicly identified a large roster of DEI initiatives that Muldrow could implicate at the time the Court granted certiorari—“from providing race-restricted access to mentoring, sponsorship, or training programs; to selecting interviewees partially due to diverse candidate slate policies; to tying executive or employee compensation to the company achieving certain demographic targets; to offering race-restricted diversity internship programs or accelerated interview processes, sometimes paired with euphemistic diversity ‘scholarships’ that effectively provide more compensation for ‘diverse’ summer interns.”^[9] The Supreme Court’s narrow ruling should not have this broad of an effect. The opinion notes that, even in the specific context of transfer decisions, “there is reason to doubt that the floodgates will open in the way feared.”^[10] Employees must still show “some injury.”^[11] The employer’s action must still “have left [the employee] worse off;” it just “need not have left her significantly so.”^[12]

However, the Supreme Court’s adoption of an easier-to-satisfy level of harm for a Title VII claim, at a time when corporate DEI initiatives are under attack, cannot be ignored.  Importantly, Title VII doctrine also informs the analysis of employment-discrimination claims under Section 1981, which prohibits racial discrimination in making and enforcing contracts (including between private entities).^[13] Section 1981 has become a statute of choice for anti-DEI litigants.  It contains a longer statute of limitations than Title VII—and unlike Title VII, there is no administrative exhaustion requirement and no cap on damages under Section 1981.^[14] How Muldrow’s ruling will ultimately impact this, and other, contexts remains to be seen.

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Jenner & Block has a deep commitment to diversity, equity, and inclusion as well as extensive experience supporting our clients’ DEI efforts through litigation, investigations, and strategic counseling. In light of this commitment and experience, the firm has launched a task force composed of leading lawyers serving a wide variety of industries to develop creative, strategic, and tailored solutions for clients across industries and help them accomplish their DEI goals while minimizing legal risk. We are currently working with clients, including institutions of higher education and corporations, on ways to maintain diversity in the evolving legal landscape. If you are interested in learning more about our work in this area, please contact Task Force Co-Chairs Ishan Bhabha (ibhabha@jenner.com), Lauren Hartz (lhartz@jenner.com), Marcus Childress (mchildress@jenner.com), Katie Wynbrandt (kwynbrandt@jenner.com), or Erica Turret (eturret@jenner.com).