The Supreme Court opens the door to more discrimination claims involving job transfers

The U.S. Supreme Court on Wednesday made it easier for workers to bring employment discrimination suits over job transfers based on sex, race, religion or national origin.

At issue was a question that has produced many conflicting decisions in the lower courts over what constitutes illegal discrimination when it comes to job transfers.

The high court's answer Wednesday was that an employee must show some harm, but need not demonstrate harm that is "significant" or "material."

The case before the court was illustrative. It was brought by Jatonya Clayborn Muldrow, a police sergeant who claimed she was transferred from her job as a plainclothes police officer in the intelligence section of the St. Louis Police Department because she is a woman. Muldrow worked in the Intelligence Division from 2008 to 2017 investigating public corruption and human trafficking cases. She also oversaw the Gang Unit, served as head of the Gun Crimes Unit, and was assigned as a task force officer with the FBI.

Despite high employment evaluations, a new unit commander engineered her transfer out of the Intelligence Division. Among other things, he justified the transfer by noting that the division's work was "very dangerous." Over her objections, Muldrow was reassigned to a uniformed job in the department's Fifth District, where she supervised the activities of neighborhood patrol officers — approving arrests, reviewing reports and handling other administrative matters.

Though her pay and rank remained the same, Muldrow sued the police department, asserting that she had been harmed by the transfer. Because she was no longer in the Intelligence Division, she lost her FBI status and the car that came with it, and in the new job Muldrow often had to work nights and weekends, instead of the Monday-through-Friday workweek she had worked in the intelligence unit.

A federal district court judge ruled in favor of the police department, without a trial, and the 8th Circuit Court of Appeals upheld Muldrow's transfer, declaring that because she could show no "diminution to her title, salary, or benefits," her claims of discrimination were not "significant."

But on Wednesday the Supreme Court reversed that ruling and laid out a more stringent test for lower courts to use in determining whether a discrimination claim based on altered conditions of employment can proceed to trial.

The decision was unanimous, but the reasoning was not.

Writing for the six-member majority, Justice Elena Kagan said that the federal law banning discrimination in employment includes a ban not just on economic discrimination; it includes a ban on discrimination in the "terms" and "conditions" of employment." Kagan said that covers a transfer that changed "nothing less than the what, where, and when of [Muldrow's] police work."

While the 8th Circuit and some other courts have required that such discrimination claims show "significant" or "material" harm, the Supreme Court said that is too high a bar. The anti-discrimination statute "targets practices that 'treat a person worse' " because of their sex, race, religion or national origin, the court said.

Explaining why this higher threshold is necessary, Kagan said that "whether the harm is significant" turns out to be "in the eye of the beholder." And to prove the point she cited examples that lower courts have held to be not significant:

• an engineering technician is assigned to a new job site — in a 14-by-22- foot wind tunnel;

• a shipping worker is transferred to a position involving only nighttime work;

• and a school principal is transferred to a non-school-based administrative role supervising fewer employees.

In each of those sex or race discrimination cases, the lower courts found that there was no "significant" harm to conditions of employment.

That, however, is "the wrong standard," Kagan explained. Rather, if an employee can show some harm because of sex, race, religion or national origin, that is enough. "Had Congress wanted to limit the liability for job transfers to those causing a significant disadvantage, it could have done so," wrote Kagan, adding that the court "does not get to make that judgment" by rewriting the statute.

Three justices — Samuel Alito, Clarence Thomas and Brett Kavanaugh — wrote opinions concurring with the result but not the reasoning.

Alito's was the most extraordinary. "I do not join the Court's unhelpful opinion," he wrote, adding of its reasoning: "I have no idea what this means."

Justice Thomas picked some legal nits with the majority opinion, but in the end, acknowledged that it is "unlikely" the 8th Circuit had a "stringent" enough standard in mind.

And Justice Kavanaugh wrote that he favored a different and less complicated approach. If a job transfer is based on sex, race, religion or national origin, it is discriminatory, period, whether or not it causes some concrete harm. That said, he acknowledged the court's "new some-harm requirement appears to be a relatively low bar" that ought to be easily met for anyone transferred based on their sex, race, religion or national origin.

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