Elena Kagan Headed Off Disaster While Delivering a Victory for Civil Rights

(Slate) 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 8th U.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.

....(snip)....

It seemed as though the reason a lot of civil rights groups were terrified is because this case was a double-edged sword of 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.

Right. And that fear wasn’t hypothetical. There’s a case in the 10th Circuit 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 8th Circuit 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. .............(more)

https://slate.com/news-and-politics/2024/04/supreme-court-elena-kagan-tactical-victory-civil-rights-plaintiffs.html