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May 7, 2024 • 15 mins
On April 17, 2024, the Supreme Court issued its ruling in Muldrow v. City of St. Louis, Missouri. At issue was whether an employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.

Join us to hear Alison Somin break down the decision and discuss its potential ramifications.

Featuring:
Mrs. Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation
Mark as Played
Transcript

Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:02):
Welcome to scot Discast, a projectof the Federalist Society for Law and Public
Policy Studies. Our contributors joined usfrom around the country to bring you expert
commentary on US Supreme Court cases asthey are argued and the decisions are issued.
The Federalist Society takes no position onparticular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discast.

(00:29):
I'm your host, Kyle hammerness On, behalf of the faculty division of
the Federalist Society. We are heretoday to discuss muldro versus City of Saint
Louis, Missouri, in which theSupreme Court issued a nine to zero decision
on April seventeenth, twenty twenty four. It is my honor to introduce our
guests today, Alison Somman. Alisonis a legal fellow on Pacific Legal Foundation's

(00:53):
Constitutional Scholarship team, and she focuseson separation of powers and equality and opportunity.
And with that, I like toturn things over to our guest to
discuss the overview of the case andthe Court's decision. Thank you so much
so today I'm here to talk aboutmuldro versus the City of Saint Louis.

(01:14):
It's a Title seven case dealing withemployment discrimination. Usually Title seven cases involve
big employment decisions, hiring, firing, promoted, promotion, or failure to
promote. In this case, thiscase is about a Saint Louis police officer
who was transferred to a different department. She had a less favorable schedule in

(01:38):
the new job, and she alsolost access to her police car that she
had earlier. And the question wasis this transfer the kind of adverse action
that can allow her to state aclaim for a violation of Title seven,
the employment discrimination statute. In anine zero opinion, the Supreme Court well

(02:00):
that it was. They look tothe text of Title seven, which bans
discrimination in the terms, conditions andprivileges of employment. This prohibits discrimination in
the types of big employment discussions thatI that I ticked off earlier, but
also in transfers of the type thathappened to the plaintiff. Right. That
was it was really really excellent,just a great overview, And for people

(02:23):
that don't know as much as youabout Title seven, like myself, that
is also really helpful. Can youkind of go a bit more into the
reasoning that Kagan used right in thein the decision, and then maybe touch
on some of the concurrences and thedifferences within the concurrences. Sure so,

(02:44):
in the circuit court below muldro hadlost. The Eighth Circuit held that there
needed to be significant harm that wouldbefall a plaintiff in order to make out
a claim under Title seven, andthe and the kind of transfer that happened
to her was not held to besignificant harm. This is a very textureless

(03:05):
opinion. Just as Kagan said,this statute prohibits discrimination in terms conditions or
privileges. This requirement that there besignificant harm is nowhere to be found in
the statute. And indeed, oftentimesindiscrimination cases just treating somebody differently, even
if there's not an if there's notany kind of significant harm involved, it

(03:30):
bestows a stigma, which is somethingthat Title seven was crafted to avoid.
She doesn't use this example, butyou're probably familiar with the iconic movement against
people sitting at the back of thebus. On its face, this is
something that doesn't seem like it's necessarysignificant harm. Everybody has to sit somewhere
on a bus. But the stigmathat came with having to sit in this

(03:52):
particular place is what was at thecore of the real harm, and that
touched off the civil rights movement.Great. So is it possible for you
to just touch on on each ofthe concurrences and you know what each is
arguing for or against and that sortof thing. Sure, So the concurrences

(04:14):
are pretty brief, as I believeyou alluded to in your in your opening,
this opinion was nine zero all thejust so all the justices go toed
for the same bottom line. JusticeThomas wrote a brief concurrence in which he
said that he'd keep big with aboutwith the bottom light, with the bottom
line analysis. But what I thinkhe said, and this is echoed later

(04:36):
in just Injustice Alitos, he saidthat he's concerned that the Court doesn't accurately
characterize the Eighth Circuit's decision. Hesays that he does not read the Eighth
Circuit to have necessarily imposed a heightenedharm requirement in the form of a significance
test. But even though he thinksthat the Court may have significantly mischaracterized what

(04:57):
the Eighth Circuit said, he agreeswith the botom line result about what she
would have to prove on remanded okay, Right, And then Alito uses I
guess some some pretty strong language inin the opinion, right, basically saying
that this opinion is quite unhelpful,the majority, the majority opinion is quite
unhelpful. Uh, and that hedoesn't know, you know, basically you

(05:23):
know what what it means. Uh? And can you go a little bit
into that and what what justice Alitois looking at and maybe some of the
concerns that he may have. Sure, so he says that the court rate
that the court's ultimate decision is thata plaintiff has to show that she demonstrated
harm or injury, even if it'snot necessarily the significant harm that the Eighth

(05:46):
Circuit contemplates. His view is thatwhen we say harm in everyday transactions,
we usually mean something beyond what's minimallyadverse to our interests. He has a
couple of great examples. We wouldn'tsay that the grocery store harmed us by
not having our favorite brand of peanutbutter, because using harm in that context,
even though that something is minimally adverse, it's not something that we see

(06:11):
as befalling us in a significant enoughway to use that kind of word harm,
the same thing with the word injury. Or I was injured because I
ran into three rather than the usualtwo red lights on the way home from
work. Yes, the three redlights mean it's a little bit adverse to
us that using injury there seems histrionicand inconsistent with how ninety nine percent of

(06:31):
normal humans use the English language.So given that the words harm and injury
seem to incorporate some level of materialityof harming our interests, he seems to
think that the difference between this testand the test the Eighth Circuit was using
will often come out the same way. Okay, and then and just Kevin

(06:55):
also had a similar argument in termsof that he expects the court's approach right
to pretty much be the same andalmost all cases, if not all of
them. What do you see,you know, maybe a couple of years
in the future, ten years inthe future. How how does this really
change how you Title seven is maybeinterpreted by lower courts, does it?

(07:20):
Or you know? Or or isthere will there be a substantial change or
at least some sort of change thatwe'll be able to see. So I
think the concurring opinions raise a goodpoint about how in practice the Eighth Circuit
test and the and the test enunciatedby this Court might tend to collapse into

(07:41):
one another in a large percentage ofreal life situations. I think that this
might make a small difference in somesituations where it seems like there's some injury
to the plaintiff, but it's notthe most traditional kinds of injuries like hiring,
promotion, firing, what have you. I think another thing to keep
in mind is that not necessarily everythingthat violates Title seven actually makes it to

(08:05):
court. If you think that you'vebeen discriminated against, you still have to
get an attorney to represent you.And since many Title seven plaintiffs don't have
a lot of money to pay upfront, somebody who's willing to work on contingency,
who's willing to shepherd you through throughthe pendency of your case. And
so if your harm is that youare transferred to a less physically attractive office,

(08:28):
this is one of the hypos thatcame up during oral argument. And
you think this happened because of yourrace or your sex, well, is
somebody really going to want to walkyou through two or three years of litigation
when it's very like the damages toyou that you'll get for this are extremely
lower and not going to be enoughto pay your attorney. Maybe you can
get a public interest firm or astudent clinic to represent you, but those

(08:50):
people also have lots of people vyingfor their free services. So that's another
thing to keep in mind in termsof a natural constraint on who can bring
time seven claims? And do youhave any concluding thoughts on maybe the ramifications
of this and of the decision overall? I do have two different thoughts.

(09:11):
So number one, we're seeing alot of kind of non traditional employment cases
challenging employer's use of DEI or diversity, equity and inclusion programs. Some of
these, for example, deal withmandatory or not mandatory but strongly urged employer
trainings, some of which contain verynasty or offensive materials about people based on

(09:37):
race, that call all white peoplecolonialists, that break people up into groups
based on race, that classify peoplearbitrarily as oppressors or oppressed based on race
without looking at individual circumstances. Understandably, many people find these offensive, and
some people have gone so far asto try to to take their employers into

(10:01):
court for these trainings. So thesedon't seem to fit in the most traditional
paradigm of Title seven. But nonetheless, these are offensive trainings that rite people
into groups by race, that makethem feel the kind of stigma and shame
based on race or based on sexnational origin that seems to be in the
heartland of Title seven. My publicinterest law from the Pacific Legal Foundation represents

(10:26):
a gentleman named Joshua Deemer. JoshuaDeemer was a social worker in Seattle in
a very liberal office. He gotgreat reviews at his job, helped probably
hundreds of kids over the years fitinto their families, but nonetheless started to
butt heads with some of his coworkers. When the city of Seattle adopted a

(10:50):
bunch of offensive trainings. He hadto sit in a separate group because he
was white. He was told thathe was an oppressor because of his race.
The list goes on, really quitea crazy story. Uh. He
things eventually got to the point wherehe felt that he had constructed that he
was forced into constructive resignation, andso he's now bringing a suit against the

(11:11):
city represented by some of my colleaguesat the Pacific Legal Foundation because he because
he because he eventually resigned. Ibelieve that in his circumstances, it's not
there's not a missing kind of issuewith showing harm. But in other types
of cases, the question is,is somebody who's been subjected to this kind
of training, it is this riselevel of being a Title seven violation potentially.

(11:35):
And I think that even though this, even though this particular case deals
with somebody who's facing a very differentkind of harm under Title seven. Jitania
Muldro is a black woman. She'sshe's complaining about a transfer that she understood
to be unfair and based on herrace and her sex, not a DEI
training. But I believe at themargin this this opinion will help people who

(11:58):
want to bring actions again their employersbased on offensive DEI trainings. The second
thought that I had is that Iwanted to speculate about the interplay between disparate
impact and disparate treatment in these Inthese cases, there are two main types
of antidiscrimination law on the books.One deals with disparate treatment, And this

(12:22):
is the kind of case that waskind of thing that was happening in Muldro.
This is somebody who believes that shewas treated differently on the basis of
her race and her sex, andshe believed that her employer was actually individually
targeting her based on those characteristics.There's also what's known as disparate impact laws
and an employment that makes illegal policiesthat have a differential effect based on race,

(12:48):
sex, national origin, et cetera, even if the employer wasn't actually
intending to discriminate based on that characteristic. So, for example, the EOC
in recent years has done a lotwith el criminal background checks. In many
cases, the employer isn't using thosebecause the employer intends to target a particular
racial group, but because the employerwants to weed out people that with what

(13:11):
he or she sees as having undesirablecharacteristics relating to dishonesty, propensity for stealing,
propensity for fighting at work, thatkind of thing. So it's one
thing. It's one thing to saythat employment discrimination. It's one thing to
use desperate impact with regard to bigthings like hiring, firing, et cetera.

(13:33):
It's I think it's a significant overreachfor the government to tell employers,
essentially that they need to have perfectproportionality when it comes to who they hire,
who gets fired, et cetera.Once you're importing that same kind of
broad liability untethered to intent for everylittle thing employers could do. You could
challenge your employer because of the desperateimpact that his or her office assignment policy

(13:56):
has or his or her transfer policy, even when there's no intent to discriminate,
just because there's a disproportionality that potentiallyhugely widens up the scope of liability
under Title seven and could put someemployers on the hook for true trivialities.
The Court doesn't really engage with thatin this opinion. I understand why this

(14:16):
isn't a disparate impact case, thiswasn't before the court, but this is
something where I'm concerned about runaway plaintiffsbringing these actions or the EEOC really getting
grand euork. It wants to beaggressive and enforcing this sort of thing,
and possibly Congress should step in andclarify to make sure that the EOC isn't
actually demanding that people have proportionality overin every aspect of life in the workplace.

(14:39):
Well, thank you so much,Alison for joining us. That was
really great, really great overview.And also I had not thought about those
ramifications that you just mentioned, soI'm definitely some willing to look out for
in the future. Thank you somuch. All right, thank you,
thank you for listening to this episodeof SCO. Discust is the project of

(15:01):
the Federalist Society, a not forprofit educational organization of conservative and libertarian law
students, law professors, and lawyers, founded upon the principles that the state
exists to preserve freedom, that theseparation of governmental power is essential to our
constitution, and that it is emphaticallythe province and duty of the judiciary to
say what the law is, notwhat it should be. Don't forget to

(15:22):
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Play. For an archive of pastpodcasts, as well as audio and video
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(15:50):
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