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On Wednesday, the Supreme Court handed down Muldrow v. St. Louis, an important civil rights victory for employees who face discriminatory job transfers. Mark Joseph Stern and Dahlia Lithwick discuss the case in Saturday’s Slate Plus episode of Amicus. Below is a preview of their conversation, which has been edited and condensed for clarity. To listen to the full episode on Saturday, join Slate Plus.
Dahlia Lithwick: We had some good news this week, a little bright moment in the form of a Title VII case that could have gone horrifically awry but didn’t. Mark, can you tell us about it?
Mark Joseph Stern: This case is about Jatonya Muldrow, who was a police officer in St. Louis. For years, she worked an exciting job investigating public corruption and human trafficking. She oversaw the gang unit and she worked with the FBI—it was a very active job. Then, suddenly, it all ended when a new commander came who didn’t think she could handle the “very dangerous” work of her post. So he transferred her to a job where she had the same pay and rank but mostly just supervised neighborhood patrol officers.
Muldrow filed suit under Title VII, arguing she was discriminated against on the basis of sex. But she lost at the 8th U.S. Circuit Court of Appeals, which didn’t think the transfer was discriminatory. The court said a transfer doesn’t violate Title VII unless it imposes a “substantial harm” on the worker, and it didn’t see any such harm here. So, with the assistance of Brian Wolfman and students at the Georgetown Law Appellate Clinic, Muldrow took this case to the Supreme Court. She argued that employees should be able to raise a Title VII claim whenever they’re transferred because of a protected trait even if they can’t prove some kind of serious harm.
And folks were very worried about that point, right? Because it seems as if transfers have certainly become a key way to screw over people without actually firing them. But this was a risky case to take to the Supreme Court as currently constituted.
It was risky in both directions. It’s risky because this is not a court that’s particularly favorable to civil rights claims, and because this case might’ve given the conservative justices an opportunity to combat workplace diversity through Title VII.
But the risk paid off! The court unanimously sided with Muldrow, and Justice Elena Kagan wrote a really strong opinion for the court, saying: “Look, we all know transfers can be harmful without some showing of ‘substantial’ harm. A transfer might not include a pay cut, but it might slash someone’s duties, it might impair their career, it might impose a set of seemingly small irritations and roadblocks that all add up to something real.” And so Kagan wrote a somewhat narrow but still important decision saying that all a Title VII plaintiff has to show is some harm that’s above trivial. It doesn’t have to be substantial, major, burdensome, whatever. It just has to be harm, because that’s baked into the word discrimination. Kagan actually cited Bostock v. Clayton County for that proposition, which I think is another smart move—she’s showing it’s still good precedent.
By maintaining the harm requirement, Kagan headed off the danger on the other side of this case: that the Supreme Court would weaponize it to attack diversity initiatives and DEI training. There was a real fear that the conservative justices would say that any different kind of treatment based on race or sex was unlawful, even if it’s positive. Think about a law firm that’s eager to promote more women, so it promotes a woman—does that mean she can sue because she has been “discriminated” against? The court didn’t go that far. And by keeping the decision narrow, it headed off this burgeoning effort among conservative lawyers and lower courts to repurpose Title VII as a weapon against “reverse discrimination,” to kill programs that make sure women and people of color can get a fair shake in the workplace.
It seemed as though the reason a lot of civil rights groups were terrified is because this case was a double-edged sword of either saying “No, transfers are totally benign” or “Yes, they’re discriminatory, and therefore all efforts at diversity are unlawful.” It comes out that neither of those things is true. It looks like DEI training lives to fight another day, and this is a narrow opinion with the right result. Kagan threaded the needle.
Right. And that fear wasn’t hypothetical. There’s a case in the 10th Circuit where a correctional officer opposed DEI training on the grounds that it created a “hostile work environment” because it involved talk about race. There’s a case in the 8th Circuit where a father-son duo said DEI trainings violated their religious beliefs. There’s this theory developing that just to talk about race or sex—to say, for instance, “We’re working to create more pathways to promotion for people from underrepresented backgrounds”—is illegal. That it’s all a Title VII violation. And the court rejected that approach.
Only Justice Brett Kavanaugh tried to push the court to go all the way here. He wrote a separate opinion saying the court should have used this case to say any kind of different treatment is unlawful under Title VII. He sounded disappointed that the majority didn’t take the bait, but he was alone in that. And so I think this is just another example of Justice Kagan being a really smart strategic mind, using these narrow, carefully written opinions to head off ulterior motives on the right while securing a real and meaningful victory for the left.
