Supreme Court: Elena Kagan’s tactical victory for civil rights plaintiffs.
On Wednesday, the Supreme Court handed down Muldrow v. St. Louis, an important civil rights victory for employees who face discriminatory job transfers. Mark Joseph Stern and Dahlia Lithwick discuss the case in Saturday’s Slate Plus episode of Amicus. Below is a preview of their conversation, which has been edited and condensed for clarity. To listen to the full episode on Saturday, join Slate Plus.
Dahlia Lithwick: We had some good news this week, a little bright moment in the form of a Title VII case that could have gone horrifically awry but didn’t. Mark, can you tell us about it?
Mark Joseph Stern: This case is about Jatonya Muldrow, who was a police officer in St. Louis. For years, she worked an exciting job investigating public corruption and human trafficking. She oversaw the gang unit and she worked with the FBI—it was a very active job. Then, suddenly, it all ended when a new commander came who didn’t think she could handle the “very dangerous” work of her post. So he transferred her to a job where she had the same pay and rank but mostly just supervised neighborhood patrol officers.
Muldrow filed suit under Title VII, arguing she was discriminated against on the basis of sex. But she lost at the 8thU.S. Circuit Court of Appeals, which didn’t think the transfer was discriminatory. The court said a transfer doesn’t violate Title VII unless it imposes a “substantial harm” on the worker, and it didn’t see any such harm here. So, with the assistance of Brian Wolfman and students at the Georgetown Law Appellate Clinic, Muldrow took this case to the Supreme Court. She argued that employees should be able to raise a Title VII claim whenever they’re transferred because of a protected trait even if they can’t prove some kind of serious harm.
AdvertisementAnd folks were very worried about that point, right? Because it seems as if transfers have certainly become a key way to screw over people without actually firing them. But this was a risky case to take to the Supreme Court as currently constituted.
Advertisement Advertisement AdvertisementIt was risky in both directions. It’s risky because this is not a court that’s particularly favorable to civil rights claims, and because this case might’ve given the conservative justices an opportunity to combat workplace diversity through Title VII.
View TranscriptBut the risk paid off! The court unanimously sided with Muldrow, and Justice Elena Kagan wrote a really strong opinion for the court, saying: “Look, we all know transfers can be harmful without some showing of ‘substantial’ harm. A transfer might not include a pay cut, but it might slash someone’s duties, it might impair their career, it might impose a set of seemingly small irritations and roadblocks that all add up to something real.” And so Kagan wrote a somewhat narrow but still important decision saying that alla Title VII plaintiff has to show is some harm that’s above trivial. It doesn’t have to be substantial, major, burdensome, whatever. It just has to be harm, because that’s baked into the word discrimination. Kagan actually cited Bostock v. Clayton Countyfor that proposition, which I think is another smart move—she’s showing it’s still good precedent.
AdvertisementBy maintaining the harm requirement, Kagan headed off the danger on the other side of this case: that the Supreme Court would weaponize it to attack diversity initiatives and DEI training. There was a real fear that the conservative justices would say that any different kind of treatment based on race or sex was unlawful, even if it’s positive. Think about a law firm that’s eager to promote more women, so it promotes a woman—does that mean she can sue because she has been “discriminated” against? The court didn’t go that far. And by keeping the decision narrow, it headed off this burgeoning effort among conservative lawyers and lower courts to repurpose Title VII as a weapon against “reverse discrimination,” to kill programs that make sure women and people of color can get a fair shake in the workplace.
Advertisement AdvertisementIt seemed as though the reason a lot of civil rights groups were terrified is because this case was a double-edged swordof either saying “No, transfers are totally benign” or “Yes, they’re discriminatory, and therefore all efforts at diversity are unlawful.” It comes out that neither of those things is true. It looks like DEI training lives to fight another day, and this is a narrow opinion with the right result. Kagan threaded the needle.
Popular in News & Politics
- The Lawyer Defending Idaho’s Abortion Ban Irritated the One Justice He Needed on His Side
- You Don’t Want to Know How It’s Going Between Trump’s Lawyers and the Judge Presiding Over His Criminal Case
- We’ve Been Entertaining an Illusion About the Supreme Court. It’s Finally Been Shattered.
- Prosecutors Are Finally Revealing Their Strategy Against Trump
Right. And that fear wasn’t hypothetical. There’s a case in the 10thCircuit where a correctional officer opposed DEI training on the grounds that it created a “hostile work environment” because it involved talk about race. There’s a case in the 8thCircuit where a father-son duo said DEI trainings violated their religious beliefs. There’s this theory developing that just to talk about race or sex—to say, for instance, “We’re working to create more pathways to promotion for people from underrepresented backgrounds”—is illegal. That it’s all a Title VII violation. And the court rejected that approach.
Only Justice Brett Kavanaugh tried to push the court to go all the way here. He wrote a separate opinion saying the court should have used this case to say any kind of different treatment is unlawful under Title VII. He sounded disappointed that the majority didn’t take the bait, but he was alone in that. And so I think this is just another example of Justice Kagan being a really smart strategic mind, using these narrow, carefully written opinions to head off ulterior motives on the right while securing a real and meaningful victory for the left.
Tweet Share Share Comment-
Best Labor Day headphones deals: Apple, Bose, Beats, and more on saleNew cases soar to fresh high of over 340,000 amid omicron wave2024年荔枝营销这么干!高州召开荔枝营销书记专题会Chris D'Elia and the rise of Twitter as a platform to call out sexual predatorsWhat to expect when a tech bubble burstsMoon, Yoon to hold luncheon on WednesdayShane Dawson's apology and deeper issues with racism in entertainmentHouse Judiciary Barr contempt vote passes.NASA's new plan keeps Starliner astronauts in space until 2025What lies ahead for president
下一篇:Who is the Dark Wizard in 'The Lord of the Rings: The Rings of Power' Season 2?
- ·The OLED Burn
- ·[Election 2022] How to ‘correctly’ show off your support
- ·Tesla says Juneteenth is a holiday, but Elon Musk clarifies the catch
- ·Leclerc wants Monaco to stay in F1
- ·Gastro Obscura's Guide to Where to Eat in Nashville
- ·Celtics reach first Finals since 2010
- ·Pentagon urges N. Korea to stop 'needless' provocation and engage in negotiations
- ·Leclerc wants Monaco to stay in F1
- ·Alcaraz vs. Van de Zandschulp 2024 livestream: Watch US Open for free
- ·Distance learning plans crunched as laptop shortage hits U.S.
- ·How to create a Facebook account
- ·Wolff hints at changes for survival of Monaco race
- ·Netanyahu’s Inferno
- ·Here are the 13 best tweets of the week
- ·Exhibition showcases Indian chapter in Korean War
- ·Support foundation for Gaesong complex set to be dismantled
- ·Apple Watch 10 rumors: Everything we know so far
- ·India to build on Thomas Cup euphoria
- ·House Judiciary Barr contempt vote passes.
- ·Leclerc wants Monaco to stay in F1
- ·Netanyahu’s Inferno
- ·防风险保安全 切实做好秋冬季森林防灭火工作
- ·FTC cracks down on creepy SpyFone stalkerware app
- ·Support foundation for Gaesong complex set to be dismantled
- ·The Future of Tech: The Desktop PC
- ·Commissioning Misleading Core i9
- ·Spate of defections show Kim Jong
- ·雅安市专项整治漠视侵害群众利益问题监督举报方式
- ·Trust Pelosi. She’s right about 2020 and impeachment.
- ·USFK mobilizes 5 choppers to help contain east coast wildfires
- ·Yoon, US Senate's armed service committee chief discuss alliance, N.K. threats
- ·Bromell, Thompson
- ·兰开驰会见四川金强集团董事长周仕强
- ·10 TikTok accounts to follow if you love to cook
- ·Yes, big spiders are spreading in the U.S. No, they're not flying.
- ·Bromell, Thompson