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The Supreme Court unanimously ruled on Wednesday that a female police officer in St. Louis may sue for employment discrimination over a forced lateral transfer to another position in the police department.
The ruling will open the courthouse doors to more employment discrimination suits. Justice Elena Kagan, writing for six justices, said that “many cases will come out differently” under the court’s decision. But she added that “there is reason to doubt that the floodgates will open” to allow “insubstantial lawsuits.”
The case concerned Jatonya Muldrow, who worked for almost a decade in the St. Louis Police Department’s Intelligence Division, where her responsibilities included public corruption, gang violence and human trafficking. Her supervisor called her a workhorse and the “one sergeant he could count on in the division.”
In 2017, a new supervisor transferred Ms. Muldrow to another part of the department, to work as a patrol officer, replacing her with a male officer. Ms. Muldrow’s salary and rank remained the same, but her responsibilities did not.
In the Intelligence Division, she had weekends off, worked regular hours, wore plain clothes and drove an unmarked car.
The new job was more routine, had irregular hours and required her to wear a uniform and to drive a marked police car. After eight months, she was transferred back to the Intelligence Division.
A federal appeals court ruled against her, saying that she had not proved that the transfer amounted to “a tangible change in working conditions that produces a material employment disadvantage.”
That was the wrong standard, Justice Kagan wrote. It was enough, she said, to show “some harm.”
Justice Kagan summarized the harm Ms. Muldrow had described.
“She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders,” Justice Kagan wrote. “She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car.”
“If those allegations are proved,” Justice Kagan wrote, “she was left worse off several times over.”
Justice Kagan rejected an argument from the city based on the word “otherwise,” which has been the subject of much scrutiny of late. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual.”
Lawyers for the city said that refusing to hire or firing someone is a very serious matter, and so the term “otherwise” indicates that other sorts of discrimination count only if they inflict similar harm.
Justice Kagan disagreed. “Muldrow need show only some injury respecting her employment terms or conditions,” she wrote.
Three justices filed concurring opinions that agreed with the majority’s bottom line but did not adopt its reasoning.
Justice Clarence Thomas wrote that the majority’s new standard was not much different from the one the appeals court had used.
Justice Samuel A. Alito Jr. criticized the majority’s “unhelpful opinion.” After summarizing it, he wrote that “I have no idea what this means.”
He added that plaintiffs should be required to prove “at least some degree of significance or substantiality” as opposed to more subjective perceived disadvantages.
“We do not typically say that we were harmed or injured by every unwanted experience,” he wrote. “What would we think if a friend said, ‘I was harmed because the supermarket had run out of my favorite brand of peanut butter,’ or, ‘I was injured because I ran into three rather than the usual two red lights on the way home from work’?”
If Justices Thomas and Alito found the majority’s approach too lax, Justice Brett M. Kavanaugh, in his own concurring opinion, said it was too strict.
“Suppose,” he wrote, “that an employer says to an employee in the Columbus office: ‘We are transferring you to the Cincinnati office because you are Black. But your compensation will not change.’ Does that violate Title VII? Of course it does.”
No additional showing of harm should be required, Justice Kavanaugh wrote. “The discrimination is harm,” he wrote.
He said the practical difference between his approach and that of the majority may be slight.
“Even though I respectfully disagree with the court’s new some-harm requirement,” Justice Kavanaugh wrote, “I expect that the court’s approach and my preferred approach will land in the same place and lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100.”
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