A recent Supreme Court decision has made it clear that DEI is not dead, and employers must still assess job transfers for fairness. See Muldrow v. City of St. Louis, Missouri, et al, 601 US ___ (2024). We have been discussing this a lot over the past year with organizations such as Spectra Diversity.
Diversity, Equity, and Inclusion (“DEI”) must remain priorities for employers, as I will discuss in a June continuing legal education (“CLE”) course for Lawline. In the meantime, let’s review the Muldrow case and its implications.
Background
Sergeant Jatonya Clayborn Muldrow was a female, plainclothes officer in the St. Louis Police Department. She filed a sex discrimination lawsuit against the City after she was transferred from her position in the specialized Intelligence Division to make room for a male officer. Although her rank and pay did not change, the transfer resulted in different responsibilities, perks, and work hours. Before the transfer, among other duties, she worked with high-ranking officials on department priorities. Afterward, she supervised neighborhood patrol officers, had a less consistent schedule, and no longer had use of an unmarked department vehicle.
Procedural History
The District Court granted the City summary judgment and dismissed Muldrow’s lawsuit. She appealed, and the Eighth Circuit Court affirmed the lower court’s decision, holding that she must show the transfer caused her a “materially significant disadvantage” and she could not. The appellate court found the transfer caused “only minor changes in working conditions” because her title, salary, and benefits had not changed. Again, she appealed.
SCOTUS Decision
In a unanimous decision, the Supreme Court of the United States (“SCOTUS”) held that an employee challenging a job transfer under Title VII of the Civil Rights Act of 1964 does not need to demonstrate significant harm. Instead, Muldrow only needed to show that the transfer brought about some disadvantageous change in an identifiable term or condition of employment. The Court emphasized that the statute does not establish a heightened threshold of harm and distinguished the case from one involving retaliation.
Implications for Employers
- Equal Treatment. Employers must ensure that job transfers are not based on discriminatory factors such as gender, race, religion, age, or national origin.
- Assessing Transfers. A transfer may still be unlawful if it affects responsibilities, perks, schedule, or other aspects of the employee’s job.
- Documentation and Communication. Clear documentation and transparent communication can help demonstrate the legitimate business reasons for employee transfers.
- Mediation and Conflict Resolution. Open dialogue facilitated by a neutral third-party can help employers and employees find mutually agreeable solutions to workplace disputes. This can save everyone the high time, money, and energy costs of litigation.
Conclusion
In short, employers can’t transfer female employees because they would prefer men in their roles. Even if you let them keep their titles, pay, and other benefits, you are unlawfully discriminating. The Supreme Court’s decision in Muldrow emphasizes the importance of fair treatment in job transfers, but the concepts apply to all terms and condition of employment. Yes, some DEI initiatives and programs have been banned. However, that does not mean discrimination is suddenly legal again.