Supreme Court workplace discrimination case could open floodgates for anti-DEI lawsuits
Kaelan Deese
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The Supreme Court heard oral arguments Wednesday in a case that could open up the definition of what qualifies as workplace discrimination in ways that could threaten corporate DEI policies.
The case, Muldrow v. City of St. Louis, involves a black female police sergeant who claims her employer discriminated against her by transferring her out of the department’s intelligence division and filling her role with a man. The transfer did not involve a reduction in her pay or rank, however, and a finding by the high court that she nonetheless faced discrimination would raise questions about whether workplace DEI programs that treat employees differently, not necessarily worse, on the basis of their sex or race are forms of discrimination.
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The Biden administration supports petitioner Jatonya Clayborn Muldrow, arguing Congress never intended to create such a high bar for Title VII complaints over job transfers. A majority of justices on the high court seemed to give some favor to Muldrow’s argument, although it is unclear how broadly the justices will rule.
Lower courts have held that Muldrow was not significantly harmed by the transfer because it was a lateral move within the department and thereby did not reach the threshold for a complaint under Title VII.
In his opening remarks, Muldrow’s attorney Brian Wolfman argued that different treatment of a member of a protected class is often a violation of Title VII of the Civil Rights Act, even if the treatment is not obviously worse than how an employer treats other workers.
Republican-appointed Justice Clarence Thomas asked him to clarify, “What is the worse treatment here?”
“The way I would put it is that in the vast majority of circumstances, differential treatment and worse treatment are going to be the same thing,” Wolfman said, adding he believes that aligns with the high court’s precedent in Heckler v. Mathews.
Another one of the high court’s Republican-appointed justices, Neil Gorsuch, appeared to show some unease about rubber-stamping the “artificial” test lower courts imposed on Muldrow that hindered her case and similar ones.
“Once the 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 extratextual layer that’s going to weed out a bunch of cases based on a judge’s sensibilities,” Gorsuch said.
Moreover, civil rights groups often say the high burden of proof to show claimants were harmed in Title VII discrimination suits result in judges dismissing cases, an argument that Muldrow’s attorney pushed during oral arguments Wednesday morning.
Justice Ketanji Brown Jackson, an appointee of President Joe Biden, aimed to highlight “a distinction between discrimination against someone that injures them versus discrimination that might not injure them.”
At one point, Republican-appointed Justice Amy Coney Barrett asked Wolfman a hypothetical question about what would happen, in his view, if an employer desired to increase diversity in the workplace by promoting “some black employees and they get better jobs.” Barrett asked if doing so would constitute discrimination against everyone else in the workplace.
Wolfman said he wanted to answer her question but that Barrett’s hypothetical “is not posed by this case.”
Still, Barrett said she interpreted Wolfman’s arguments as supporting a discrimination case in the hypothetical scenario involving black employees.
The Supreme Court‘s ruling in this case could backfire against the Democratic administration’s firm commitments to diversity, equity, and inclusion programs, depending on the scope of the decision. Such policies are already in legal jeopardy due to the high court’s more recent decisions in the pair of Students For Fair Admissions cases, which eradicated affirmative action programs in colleges and had cascading impacts on DEI in the corporate environment.
Andrea Lucas, a Republican commissioner for the U.S. Equal Employment Opportunity Commission, said there were several DEI initiatives that could be implicated by the Muldrow case depending on whether the justices lower the standard to bring Title VII action, and whether their ruling applies to litigants other than Muldrow herself, according to Lucas’s statement to National Law Review.
Lucas listed examples of DEI policies that could be implicated, such as “providing race-restricted access to mentoring, sponsorship, or training programs; to selecting interviewees partially due to diverse candidate slate policies; to tying executive or employee compensation to the company achieving certain demographic targets; to offering race-restricted diversity internship programs or accelerated interview processes.”
Since the SFFA decision in June, law firms and colleges have come under legal threat from litigants who argue some scholarships or fellowship opportunities that are exclusive to people with particular ethnic backgrounds would violate the Supreme Court’s holding in that case.
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The high court’s weighing of the Muldrow case comes as a recent report by the firm Paradigm found that the percentage of companies with DEI budgets has decreased by four percentage points since last year, while the percentage of companies with DEI “strategies” has decreased by nine points.
A decision in the case is expected before the end of June.