A case was argued last month before the Supreme Court, Muldrow v. City of St. Louis No. 22-193 out of the 8th Circuit, which asked the question: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?” It should have been an easy case.
Clayborn Muldrow, a woman, was transferred to her position as a patrol detective from the Department's Intelligence Division, a preferable job which had better opportunities for pay and overtime and promotion, to another district doing administrative duties. Because her rank, pay, and responsibilities remained the same, the Eighth Circuit held that the transfer was legal. No harm no foul.
However, various courts are rethinking what it means to be discriminatory. In a recent case before the Fifth Circuit, and as reported in EPTW (Sept 6th), the court en banc has rethought their approach for EEO liability. In Hamilton v. Dallas County, No 21-10133 (Fifth Circuit Court of Appeals, 8/18/23), Dallas County set a policy that clearly favored men over women. A sex-based scheduling system for jail guards in the Dallas County Sheriff’s Department was established that allowed female officers equal time off, but only during weekdays or by a combination of one weekday and one weekend day. Men could have the full weekend off. Female detention officers sued the county alleging those changes to the policy for scheduling days off constituted sex discrimination under Title VII.
Initially, the Fifth Circuit agreed with the County using its traditional approach of prohibition of an ultimate employment decision. But the ultimate employment decision did not discriminate in terms of pay or benefits. Therefore, the policy did not violate Title VII. But the female officers appealed to the full court. The Fifth Circuit en banc took on the case. It noted that the county knew it was discriminating on the basis of sex. In a footnote of the Court described the situation:
“Before April 2019, Plaintiffs-Appellants’ schedules were based on seniority. However, in or around April 2019, [footnote omitted] a gender-based scheduling policy went into effect and only male officers were given full weekends off whereas female officers were allowed two weekdays off or one weekday and one weekend day off. Plaintiffs-Appellants alleged that [w]hen [they] asked the [s]ergeant how scheduling was determined, he stated that it was based on gender” and explained that it would be safer for the male officers to be off during the weekends as opposed to during the week.”
There was no doubt that the women were knowingly being discriminated against.
In the Muldrow case, she was moved into a line of progression that was less favorable to the one she was in, even though she did not lose any pay or benefits. Her boss did not like her though. She liked her job and was recognized as being good at her job. Her supervisor, however, deemed the position too “dangerous” for Muldrow—whom he consistently called “Mrs. Muldrow” rather than “Sergeant,” which he used when addressing male officers.
The Justices asked a number of questions to see what the boundaries were with respect to an updated standard.
For example, justices posed a number of hypothetical cases of discrimination, such as employees receiving pink or blue pens, a blue office or a red office, an office with an alley view or an office with a park view, and so on. And if males got the blue office or one with a park view, was that discriminatory?
For example, Chief Justice John Roberts and Justice Ketanji Brown Jackson posed the example of a workplace in which employees are ordered to work in differently painted offices based on their sex.
“You have [two offices], and one is red and one is blue,” Jackson said. “They’re otherwise identical. And the boss says, ‘I think women should be in red offices’ … Is it the government’s position that the woman would have to, in that scenario, not only prove that she was selected for this treatment because she was a woman but also that working in a red office significantly injured her?”
Justice Alito asked about boorish behavior. "What if the supervisor is always nasty to me? Does that qualify?"
Justice Barrett asked if Title VII would come into play if a company promotes some Black employees based on their race for the sake of increasing workplace diversity in the upper echelons of an organization. Justice Thomas grilled an attorney for the Biden administration about whether Title VII would be triggered in a situation where a law enforcement precinct transfers Black and Hispanic officers to a particular outpost where diversity is lacking. "Can you have discrimination that is perceived by someone who is, say, you say that this is law enforcement, and we need in this particular precinct more Black or Hispanic officers, and so you are moved or transferred because of race?" Justice Thomas asked.
Kavanaugh and Gorsuch appear to take the approach and agree that differential treatment may be “discrimination” that’s inherently harmful.
Notwithstanding that Muldrow was likely discriminated against, the Supreme Court makes it an expansive reading when activity is deemed discriminatory or not. As the questions asked show, first, it could be the death toll to DEIA initiatives, but more importantly, it could be setting up tension and a new court case between the legal requirements of affirmative action and the potential discrimination caused by implementing affirmative action policies and practices.
Source: UPO 6/6/23, Law360 12/7/23, HR Dive 12/11/23