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Supreme Court case could spark rush of reverse discrimination claims

A case before the Supreme Court is being closely watched by civil rights groups who argue that valid workplace discrimination claims are often dismissed in court because of a requirement that plaintiffs prove they were harmed by the actions of their employers.Mariam Zuhaib/Associated Press

The Supreme Court will hear arguments Wednesday in a case with potentially sweeping implications for workplace discrimination claims, especially those mirroring the complaint of the petitioner — a female police sergeant in St. Louis who says she was transferred out of a prestigious role because of her gender.

The case, Muldrow v. City of St. Louis, is being closely watched by civil rights groups who argue that valid workplace discrimination claims are often dismissed in court because of a requirement that plaintiffs prove they were harmed by the actions of their employers. The Biden administration is supporting petitioner Jatonya Clayborn Muldrow, because it says Congress never intended to impose such a requirement regarding job transfers.

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The case also is being watched by employment attorneys and some conservatives who say a broad ruling for Muldrow could open the door to a flood of reverse discrimination claims against certain workplace diversity, equity, and inclusion programs — such as mentoring and training programs for underrepresented groups — that ordinarily would not survive in court. Such complaints have become more common since the Supreme Court overturned race-conscious college admissions in June.

“The Supreme Court is going to address a very fundamental aspect of Title VII, namely: What does it cover? What is actionable under Title VII?” said Ishan Bhabha, a partner at Jenner & Block and a co-chair of the law firm’s DEI Protection Task Force, referencing the section of the 1964 Civil Rights Act that prohibits discrimination by employers. “Given that Title VII is one of the main avenues through which challenges to DEI programs … are being brought, certainly what the Supreme Court says here is going to have a significant impact.”

A ruling narrowly focused on the facts of Muldrow’s case — alleged discrimination through a lateral transfer — could have little impact on DEI programs, Bhabha and other legal experts said. But a broader ruling that relaxes the need to prove harm could threaten DEI programs that previously had been thought safe.

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“If the Supreme Court adopts a broader understanding of adverse action in Muldrow, that’s going to open the door to more colorable discrimination challenges, period,” Andrea Lucas, an EEOC commissioner appointed by Donald Trump, said in an interview. “That applies to possible challenges to DEI programs as much as any employment discrimination claim.”

Muldrow alleges that St. Louis Police Department officials discriminated against her when they transferred her out of her job within the intelligence division, where she had been deputized as an FBI agent, had a steady schedule, and investigated public corruption and human trafficking cases. The sergeant’s new job at a district-level station came with none of that prestige, she alleges. Even though her pay remained the same, she lost her FBI privileges, worked patrol, and was put on a schedule in which she worked weekends. She was replaced in the intelligence division by a male sergeant, and no male sergeants had been transferred out of the unit alongside her, she alleges.

But Muldrow’s case has not proceeded to trial because a district court judge — as well as a panel on the US Court of Appeals for the 8th Circuit — held that Muldrow failed to demonstrate that the transfer amounted to an “adverse employment action” that caused material harm.

The high court will consider whether Title VII prohibits discrimination in employer transfer decisions without additional proof that the transfer caused tangible harm, or “significant disadvantage.” Title VII prohibits employment discrimination on the basis of race, color, religion, sex, and national origin. Many federal jurisdictions impose a form of the significant disadvantage standard for employment discrimination claims.

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With support from the Biden administration and advocacy groups like the NAACP Legal Defense Fund, Muldrow argues that no such requirement exists in the text of Title VII. Conversely, the city of St. Louis counters that the statute requires a showing of harm in transfer decisions — and eliminating it would swamp the courts with relatively minor workplace grievances.