Tweet Share Share Comment This is part of Opening Arguments, Slate’s coverage of the start of the latest Supreme Court term. We’re working to change the way the media covers the Supreme Court. Support our work when you join Slate Plus.
When your boss transfers you to a less favorable shift or position because of your race, sex, or religion, are you a victim of illegal discrimination? The answer should obviously be yes: Being treated differently at work on the basis of a protected trait is prohibited by federal law. Yet most lower courts have resisted this conclusion for decades, forcing victims to prove some special, heightened harm in order to sue. On Wednesday, the Supreme Court indicated its intent to shut down this anti-worker regime, with a coalition of liberal and conservative justices uniting behind the plain language of the law. It was a bit surreal to hear Justices Neil Gorsuch and Brett Kavanaugh side with the liberal justices in favor of workers’ rights. And the conservatives may well have an ulterior motive for a vigorous enforcement of the law in question. But these days, you take what you can get from the Supreme Court. And what we seem likely to get is a course correction that will improve the lives of working people.
Advertisement
The facts of Wednesday’s case, Muldrow v. City of St. Louis, show how managers can use transfers to entrench inequality in a workplace. Jatonya Clayborn Muldrow worked in the St. Louis Police Department’s Intelligence Division, focusing on public corruption, human trafficking, gun crimes, and gang violence. She liked her job, and was by all accounts quite good at it during her 10 years in the role. Her supervisor, however, deemed the position too “dangerous” for Muldrow—whom he consistently called “Mrs. Muldrow” rather than “Sergeant,” an honorific he used for male officers. The supervisor transferred Muldrow (along with two other female officers in her division) to a less “dangerous” job, and replaced her with a man. She was suddenly put on routine patrol, performing entry-level police work.
Advertisement Advertisement
Muldrow sued under Title VII of the Civil Rights Act of 1964, which makes it illegal for an employer to “discriminate against any individual” with respect to “compensation, terms, conditions, or privileges of employment” on the basis of race, color, religion, sex, or national origin. She argued that the department had violated Title VII by altering the terms of her employment because she was a woman. The U.S. Court of Appeals for the 8th Circuit disagreed. It declared that a forced transfer only runs afoul of Title VII when it imposes “materially significant disadvantages” on the worker (like a pay cut). Since Muldrow identified no such “disadvantages,” the 8th Circuit tossed her case.
Advertisement Advertisement
Most courts of appeals apply a similar standard in forced transfer cases, demanding proof of some “significant detrimental effect,” a wage reduction, or even “degrading” new conditions. The result has been a mass dismissal of Title VII claims alleging discriminatory transfers, depriving victims of their day in court for decades. Perhaps the most egregious example is 2017’s EEOC v. AutoZone, in which the U.S. Court of Appeals for the 7th Circuit held that segregating employees by assigning them to different stores on the basis of race does not necessarily violate Title VII. On the other hand, the U.S. Courts of Appeals for the District of Columbia and the 6th Circuit have recently disavowed this standard. Both courts explained that nothing in the plain text of the statute requires a special showing of substantial harm; an unwanted transfer based on a protected trait is illegal, full stop, because it alters a person’s “terms, conditions, or privileges of employment.”
Advertisement
That’s catnip for Neil Gorsuch, a self-proclaimed über-textualist with an inexplicable fondness for Title VII. Famously, Gorsuch wrote the opinion in Bostock v. Clayton County holding that anti-LGBTQ bias is a form of unlawful sex discrimination. On Wednesday, this version of Gorsuch reemerged after Robert Loeb, defending the employer, argued for heightened proof of harm beyond the transfer itself. Praising Title VII as “a very short and sweet statute, 28 pages long but profound,” Gorsuch told Loeb: “We’ve also kind of indicated in our cases that when you treat someone worse than another person because of race or sex, that’s kind of the end of it, and there isn’t a further inquiry into how badly you treated somebody worse.” That’s what Congress “said that the law will no longer tolerate.” And once courts “get into the business of asking whether that injury is ‘material’ or a reasonable person would be offended by it, that’s a whole different extra-textual layer that’s going to weed out a bunch of claims based on a judge’s sensibilities about how bad is bad enough.”
Advertisement Advertisement Advertisement
“I just strongly disagree with that,” Loeb said, asserting that you can’t “discriminate against” someone unless you treat them worse in some objective, measurable way. But Congress, Gorsuch countered, declared that the mere act of treating someone differently because of their identity is discrimination. “Where do we get that in the statute,” the demand for an additional “material harm”? Why should courts add a “construct” that’s “going to weed out claims that Congress in 1964 thought profoundly important to include”?
Loeb reiterated his claim that the word “discriminate” includes some additional “material harm,” and here’s where Kavanaugh came in. “I thought it meant ‘treat differently because of your race,’ ” the justice said, “and that itself is a harm, I’ve always assumed.” Not every act of discrimination relates to the terms of employment, Kavanaugh added, “but transfers, I think, clearly would.” That’s the ballgame right there: It means transfers on the basis of a protected trait discriminate in violation of Title VII.
Advertisement
Related From Slate
Saul Cornell
How the Supreme Court’s Conservatives Can Solve Their Guns Dilemma Without Losing Face
Read More There are surely enough votes to declare that a discriminatory transfer like Muldrow’s is illegal all by itself, even without proof that it harmed the employee in some other, concrete way. The real question is how, exactly, to write an opinion saying so. The justices pressed Brian Wolfman (representing Muldrow) and Aimee Brown (assistant to the solicitor general) to articulate the precise contours of such a rule. And in the process, they revealed the case’s potential to inflict negative consequences on the very people whom Title VII intended to protect—by striking a fatal blow against affirmative action in the workplace.
Advertisement Advertisement
Justice Elena Kagan gestured toward this problem first. “There are differences and distinctions that people can make on the basis of protected characteristics that make people better off, right? I mean, if I decide one day that, you know, every woman in my workplace should get a raise, I mean, that makes women better off.” Wolfman replied that this gendered pay raise “could be stigmatizing” not only to men, but to women as well. A woman might say to herself, “well, I earned this, I earned this raise, and now it’s being meted out on the basis of my sex.” So the raise, while superficially beneficial, is “still denigrating and demeaning.” That, of course, is a key argument against diversity efforts like affirmation action—that ostensible beneficiaries are really victims, because all differential treatment is inherently discriminatory.
Advertisement Advertisement
Justice Amy Coney Barrett jumped on this point. “But are you saying, then, if the employer wants to increase diversity in the workplace and so promotes, say, some Black employees and they get better jobs, then that’s discrimination?” she asked. Wolfman avoided the question, but Barrett told him (correctly) that “the answer you just gave Justice Kagan would logically apply to that situation.” The justice then asked about a hypothetical law firm that decides “the numbers of female partners are low and so they want to bring that up” by making the decision “to promote women.” Is that a Title VII violation? Wolfman had to admit that “if there is a privilege of employment that is meted out on the basis of sex, that is actionable.”
Advertisement
Popular in News & Politics
- How the Supreme Court’s Conservatives Can Solve Their Guns Dilemma Without Losing Face
- Sam Alito’s Lonely Fight to Defend His Friend’s Harebrained Anti-Tax Scheme
- Trump’s Attempt to Delay His Jan. 6 Trial Receives a Double Blow
- Clarence Thomas’ Benefactors Finally Face the Music
Current Supreme Court precedent allows affirmative action in the workplace as long as it’s a temporary measure to remedy a “manifest imbalance” in race or sex. If the Supreme Court adopts Wolfman’s view, those precedents would have to go out the window. That’s why Kagan tread so cautiously on Wednesday, trying to identify some rule that prohibits unwanted discrimination while leaving the door open to diversity initiatives. Perhaps she and the liberals can craft such a standard. But the truth is that especially after last term’s death blow to affirmative action in higher education, workplace affirmative action policies based on race or sex are on life support. The conservative supermajority has effectively rejected the notion that treating someone differently to help them is legally distinct from doing it to harm them. It has collapsed this difference entirely, declaring all differential treatment to be “discrimination” that’s inherently harmful. Gorsuch and Kavanaugh gestured toward this principle, and it may help explain why both justices are so eager to rule for workers in this case.
Advertisement Advertisement
By the end of arguments, the liberal justices sounded ready to rule for Muldrow, too, and face the consequences down the road. From a tactical perspective, that’s almost certainly the right call. No matter what the Supreme Court says in this case, it will still rule however it wants when workplace diversity hits the docket. There’s no point in screwing over victims like Muldrow who face unjust transfers just to preserve the slim possibility of salvaging affirmative action down the road. What these employees experienced was wrong and illegal, and it will be a victory for civil rights law if the court says so emphatically.
Tweet Share Share Comment - Civil Rights
- Jurisprudence
- Labor
- Neil Gorsuch
- Supreme Court
- Brett Kavanaugh
- Opening Arguments
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
visit website
