(Note: Information on how to listen to today’s case is at the end of this report.)
The Supreme Court finishes today the current round of hearings by examining the rights of workers to be treated equally when their employer transfers them to a different job, or refuses a transfer request. That may be a fairly limited issue, but the case could have wider meaning for civil rights.
Wednesday’s hearing: Muldrow v. St. Louis
Background: This case is an important test for workers’ rights, but it has special importance for women in the labor force. Women have always been a part of America’s labor force, but their emergence into the ranks outside the home was slow. That has been especially true in police work – the kind of employment at issue in this case. Stereotypes about women’s physical capacity and demeanor have long been a factor against equal opportunity in law enforcement.
From the time that Marie Owens became the first female police officer in Chicago in 1890, it would be almost a century before Penny Harrington would become the first city police chief – in Portland, Ore., in 1985. The National Institute for Justice, the research arm of the Justice Department, has found that “the percentage of women in law enforcement has remained relatively stagnant” in recent decades. It counted women as less than 13 percent of the nation’s police officers and only 9.5 percent of supervisors and 2.7 percent as chiefs.
Such progress as women officers have made has been due, in considerable part, to federal civil rights laws governing the workplace. In 1977, for example, the Supreme Court ruled in Dothard v. Rawlinson that it was illegal under Title VII of the 1964 civil rights act for the state of Alabama to limit access to prison guard positions to those who weighed a minimum 120 pounds and measured a minimum 5 feet 2 inches. It found that those excluded 40 percent of the nation’s population of women, but only 1 percent of men.
Legal background of this case: The 1964 civil rights act forbids discrimination based on sex, race, religion or national origin. The law’s Title VII focuses on workplace bias, and sweeps broadly; it specifically bars discrimination in hiring, firing, promotions, pay and benefits and it has a catch-all provision outlawing discrimination in any other “terms, conditions, or privileges of employment.” Private companies and state and local governments must obey Title VII.
This case is about an employer’s decision to transfer a worker from one assignment to another and a worker’s request for a transfer. The fact that the word “transfer” is not specifically listed in the text does not mean that it is excluded; the catch-all phrase embraces it.
Proving a violation – in any transfer decision by the employer — depends upon a worker’s evidence that their sex, race or other protected characteristic was the reason that they were treated unequally. Once they make that case, the law’s text does not require them to go further and prove that they were specifically harmed by the inequality; the discrimination is the legal harm.
In this case, however, the lower court imposed something more: a duty to prove that an employer’s transfer decision caused the worker a “material employment disadvantage,” such as a pay cut, benefit reduction, impact on future career prospects, or a change so unpleasant or undesirable as to amount to loss of employment even without a formal firing (a “constructive discharge”).
Facts of this case: A St. Louis woman, Jatonya Clayborn Muldrow, went to work in that city’s Metropolitan Police Department in 2008. She gained the rank of sergeant, and worked at police headquarters in its Intelligence Division, which dealt with gang violence, other violent crimes, public corruption and human trafficking.
When a new police chief arrived in 2017, he reorganized that Division. Sergeant Muldrow and two other women were transferred out of the Division, after the chief told associates that the work in that unit was too dangerous for women. Sergeant Muldrow learned of her transfer in a department-wide e-mail. She had already had unpleasant encounters with the chief, who insisted on calling her “Mrs.” rather than by her rank.
She was sent to the department’s Fifth District, away from headquarters. While she retained her rank and her pay level, she was put in charge of supervising routine patrol operations. At headquarters, she had worked a regular weekly schedule on eight-hour shifts, but her new assignment put her on rotating hours, including weekend duty assignments. Unlike her former position in the Intelligence Division, she no longer got opportunities to travel to other cities on police business.
Being away from headquarters, she lost her contacts with higher-ranking department officers and leaders. She also lost an FBI assignment as a part-time member of a joint federal-city task force, which included significant overtime pay. Dissatisfied with the change, she asked for a transfer to another district, where she would have become a top aide to the female captain there. That transfer was denied.
She sued the city, claiming that the only reason for her transfer out of headquarters was because of her sex; she also claimed that the denial of her later transfer request was illegal. Her lawsuit relied on Title VII of the 1964 federal law.
The federal trial judge ruled for the city, applying the controlling precedent in that federal court region, which required proof that an employer’s workplace action caused “a tangible change in working conditions that produces a material employment disadvantage.” Muldrow’s case, the judge ruled, fell short of that.
A federal appeals court agreed, applying its own precedent on the proof required for a violation of Title VII. Something more than mere discontent or dissatisfaction with a change in working conditions, that court said, is necessary under the law, “otherwise every trivial personnel action that an irritable . . . employee did not like would form the basis of a discrimination suit.”
Lawyers for Sergeant Muldrow appealed to the Supreme Court, arguing that there is a deep split between federal appeals courts on what proof is needed to show a violation of Title VII. Their appeal papers were phrased in broad terms, focusing not only on the question of how transfers are treated under Title VII, but seeking a wide ruling from the Supreme Court on the proof issue as it applied to several civil rights laws.
This case, the appeal contended, has implications for an 1866 law barring discrimination based on race or color in making contracts, and for several modern laws, including those outlawing discrimination on the job and in access to benefits based on disability, age, and genetic profiles that may reveal potential health risks.
The Court asked the Biden Administration’s Justice Department for its view on this case. Taking a similarly wide approach, the Department asked the Court to grant review. Clearing up the conflict on this issue, it told the Court, “would have broad significance for federal employment discrimination law.” It cited the same civil rights laws as Muldrow’s lawyers had, but added that the impact also could reach various federal “whistleblower” laws as they affect workers, and a federal policy barring job discrimination by companies that have contracts with the federal government.
In a further move to expand the scope of review, the Department said the Justices should also review a second case – another case in which the Court had sought the government’s reaction. That case was an appeal by a black man in Alabama who had sued over racial discrimination when he was suspended from his job with an organization that provided legal services for the poor. His case raised the proof issue on another workplace action – suspension — and did so both under both Title VII and the 1866 law promising equality in making contracts.
The Court agreed to review only Sergeant Muldrow’s St. Louis case, leaving the fate of the Alabama case to depend upon the outcome in Muldrow’s case. The Court also chose to rewrite the question it would consider, limiting it to job transfer decisions in the workplace and only under Title VII.
The question before the Court: Does Title VII of the 1964 civil rights law bar discrimination in workplace transfer decisions only when a court finds the transfer caused a significant disadvantage?
Significance: The Supreme Court, when agreeing to hear a case, does not give its reasons. Thus, one can only speculate about why it chooses to shape its own review of a specific issue. One reason is that, despite its vast power, it does consider itself to be a court of limited review, generally deciding only what is necessary to resolve a genuine legal fight, avoiding giving legal advice beyond the scope of a case, and deciding only one case at a time.
Another reason is to encourage lawyers, and others interested in the issues at stake and planning to join in, to keep their focus on what the Justices consider the most important question at stake. Title VII, of course, is an extremely broad law, so it is the one that probably most needs clarification on the kind of proof it takes to win. But transfer decisions can become an important workplace issue, probably occurring with great frequency, so that, too, is an area that needs clarification.
When the Court decides Sergeant Muldrow’s case, of course, it is likely to provide clarity that it will then expect lower courts to apply when cases arise over other workplace issues arising under different civil rights laws. And, of course, when a final decision is crafted, the Court has wide discretion whether to decide narrowly or broadly, even if its initial intention was to rule in a limited way.
The Justice Department will take part in today’s hearing, supporting Muldrow and sharing some of the time that her lawyer was assigned.
Today’s hearing will begin at 10 a.m. and is scheduled for one hour. The audio (but not the video) will be broadcast “live” on the Court’s homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
The Court’s next round of hearings will begin on January 8. The Court will be in recess in the meantime, but it may still have work to do, especially if a case arrives on a fast-track schedule over one or more of former President Donald Trump’s legal woes.