“Or otherwise discriminate”: Supreme Court Lowers Bar for Title VII Discrimination in Muldrow v. St. Louis
By Rachel Brooke
On April 17, the Supreme Court handed down its decision in Muldrow v. Saint Louis, a case about whether a police officer who was transferred from one job to another because of her sex—without changes in her rank or pay—had suffered the kind of workplace discrimination that Title VII of the Civil Rights Act of 1964 was designed to address. Justice Kagan, writing for the majority, found that Saint Louis’s reassignment of Sergeant Muldrow did qualify as an adverse employment under Title VII, effectively broadening Title VII protections for employees against discriminatory treatment in the workplace.
Sergeant Jatonya Clayborn Muldrow spent nine years working as a plainclothes officer in the City of St. Louis police department’s specialized Intelligence Division. In 2017, a new Division Commander reassigned Sergeant Muldrow to a patrol officer position, against her wishes, replacing her in the Intelligence Division with a male police officer. The new Division Commander (who had referred to Muldrow as “Mrs.” rather than “sergeant” on multiple occasions) later testified that the male officer “seemed a better fit for the Division’s ‘very dangerous’ work.” The new commander made this decision despite the outgoing commander having referred to Muldrow as a “workhorse” and the sergeant he could most count on in his department. While Sergeant Muldrow’s “rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not.” Her new duties included more administrative work, she went from “a traditional Monday-through-Friday week in the Intelligence Division” to a “rotating schedule that often involved weekend shifts,” and she lost her access to a take-home vehicle she had previously enjoyed.
Title VII creates liability for employers that “fail or refuse to hire or . . . discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” A major question in this case was whether the phrase “or otherwise discriminate” covered Sergeant Muldrow’s reassignment. The City of Saint Louis argued that, under a canon of statutory interpretation known as ejusdem generis, “or otherwise discriminate” should be interpreted as an employment action equally as grave as failing to hire or discharging an employee. But a majority of the Justices disagreed with such a narrow interpretation of Title VII, finding that “an employee must show some harm from a forced transfer to prevail in a Title VII suit,” but need not satisfy a test requiring that harm to be “significant.” In a concurring opinion, Justice Kavanaugh indicated that he would go even further, and not require separate “harm” from a forced transfer or similar employment action, as “discrimination itself is the harm experienced by the [employee].”
One important takeaway of this case is that the Justices have established that the kinds of less obvious forms of adverse employment actions that Sergeant Muldrow suffered can be addressed by federal employment law. Forced transfers, like the one Sergeant Muldrow suffered, are one such example, but scheduling changes that force workers to work late night shifts, assignments to remote or dangerous work sites, or changes to job duties that make a job more administrative may also be considered for Title VII claims when the decisions underlying these changes involve discrimination based on protected characteristics.
Aside from the broadening of the universe of adverse employment actions which can give rise to Title VII liability, evidence of discriminatory animus is also often subtle and context-dependent, and the Justices have signaled a sensitivity to that reality. Muldrow’s reassignment to a more administrative role and the fact that she was replaced with a male colleague who a supervisor thought to be better suited for a “dangerous” role she had held for nearly a decade amount to the kind of quiet, pervasive sexism in employment decisions that laws like Title VII should guard against. In 2017, a Pew Research Center poll found that 42% of working women in the U.S. said they had faced discrimination at work based on their gender. Tropes like the “work wife” and interactions influenced by “benevolent sexism” are examples of the small but pernicious ways that gender bias infects our working lives.
In sum, Muldrow has established that Title VII’s statutory language, “or otherwise discriminate,” operates as a catch-all provision for adverse employment actions which negatively affect “terms, conditions, or privileges of employment.” California’s major employment discrimination law, the Fair Employment and Housing Act (FEHA), is very similar to Title VII, and as such, California courts “look to pertinent federal precedent when applying our own statutes.” Consequently, the decision in Muldrow and newly relaxed Title VII standard is likely to have an impact on California state employment law in the near future.
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