WASHINGTON (CN) — A St. Louis police officer seemed to convince the Supreme Court on Wednesday that she should be able to bring a sex discrimination lawsuit against her department transferring her to another unit based on her sex.
“We've recognized over and over again that discrimination itself can profoundly injure people, just the fact itself that you're being treated differently from somebody else based on your race, based on your sex,” Justice Elena Kagan said.
Kagan found Sgt. Jatonya Clayborn Muldrow’s arguments — and the Justice Department attorney who argued in her favor — presented the justices with a simple and easy solution to solve the dispute.
“The position that this side of the podium is taking is both simple and easy to understand in terms of Title VII's language, which is just to say that if there is discrimination that counts as harm,” the Barack Obama appointee said. “The discrimination is the harm save for these very few exceptional cases.”
The question before the court asked if job transfers based on sex were enough in themselves to be discriminatory or if there was a requirement to prove the transfer resulted in harm.
Justice Neil Gorsuch said the discrimination was all the court needed to find.
“I think we've also kind of indicated in our cases that when you treat someone worse than another person because of race or sex, that's kind of the end of it,” the Donald Trump appointee said.
Gorsuch said requiring more would give judges too much leeway to decide these issues.
“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 extra textual layer that's going to weed out a bunch of claims based on a judge's sensibilities about how bad is bad enough,” Gorsuch said.
For almost a decade, Clayborn Muldrow was assigned to the St. Louis Metropolitan Police Department’s intelligence division working on public corruption, human trafficking, and gun and gang violence. Muldrow’s commander said she was dependable and called her a “workhorse.”
When that captain stepped down from her post, however, Muldrow was transferred to another unit. Capt. Michael Deeba was hired as the commander of intelligence in 2017 and decided to reorganize the unit to focus on violent crime. Deeba described this work as “very dangerous” and Muldrow — whom Deeba publicly addressed as Mrs. instead of sergeant — was subsequently sent to another unit as a result of the change.
The transfer resulted in changes to Muldrow’s work schedule and responsibilities. Her salary and rank remained unchanged. As an officer in the intelligence division, Muldrow worked five eight-hour days a week, allowing her to have weekends off. She also was allowed to wear plain clothes, drive an unmarked car, and work with the FBI’s human trafficking unit.
This all changed when she was transferred to the Fifth District. Muldrow no longer had FBI credentials and had to return her vehicle. She also had to work on a rotating schedule and had to wear a uniform.
Muldrow sued the city of St. Louis for sex discrimination in violation of Title VII. A federal judge granted the city’s request for summary judgment. The court of appeals affirmed.
At the Supreme Court, Muldrow said Title VII of the Civil Rights Act of 1964 bars employers from discriminating against employees because of their sex. Brian Wolfman, an attorney with Georgetown Law appellate courts immersion clinic representing Muldrow, said transferring an employee because of their sex amounted to discrimination.
“The statute prohibits discrimination, period,” Wolfman said. “If an employer transfers an employee because of a protected characteristic, that's discrimination, and it's prohibited by Title VII.”
The city argued that discrimination wasn’t enough on its face, and Muldrow needed to prove that she had been harmed by the transfer. Robert Loeb, an attorney with Orrick Herrington representing the city, said the statute required more than the frailties of a particular sensitive employee.
“It's no surprise that this court has consistently read Title VII not to speak to minor slights or personal preferences of the employee or job actions with no significant harm,” Loeb said. “As Justice Scalia emphasized in Oncale, and as this court reiterated in Burlington Northern, Title VII is not a civility code.”
Although the majority of the justices seemed to side with Muldrow, there was attention from a number of justices on the limits of what could be considered sexual discrimination in the workplace. The court appeared to accept the government’s arguments that not everything in the workplace can be considered sex discrimination because of certain differences between genders.
Aimee Brown, assistant to the solicitor general at the Justice Department, said these would include bathrooms and dress codes that are generally viewed as equal but recognize that men and women wear different clothes.
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