How Much Harm is Discrimination?
NEWSLETTER VOLUME 2.16
|April 22, 2024
How Much Harm is Discrimination?
In Muldrow v. City of St. Louis, the Supreme Court took on the question of how much harm does an employee need to show in a discrimination claim. This is a ridiculous question.
The reason it's a ridiculous question, at least in this case, was because there was no question that the employee was transferred to a less visible and lower status position because she was a woman and the employer thought a man should have the role.
This is discrimination. There is no need to measure harm. Discrimination is inherently harmful.
When employment decisions are made because of what someone looks like instead of their skills, experience, and talents, that is discrimination. Discrimination is fundamentally dehumanizing because the core message in discrimination is that the decision maker believes in stereotypes or is biased because of factors the employee or candidate has no control over. It is fundamentally unfair and wrong. Being discriminated against, regardless of the circumstances, is harm.
In most legal issues, harm is an essential element of the claim. We don't address problems that aren't actually problems. If you squeeze by someone, knowing you will touch or push them, it's technically a battery. But nobody was hurt and the annoyance by the person you touched isn't worth the time and expense of fighting about. You won't be liked; but you won't be sued.
Employment decisions are different. They affect almost every aspect of a person's life, including where the person physically works, the days and times they work, the people they work with, and what they're doing all day. These factors then influence what's going on in the rest of the person's life. It's not just about pay and benefits.
So, the idea that we should somehow measure harm from decisions about people's employment does not make sense. Change often comes with harm. Change involving discrimination is always harm.
In the meantime, here's more about the case and how it may affect employment decisions going forward. We'll be talking more about this too.
On April 17, 2024, the Supreme Court of the United States held that an employee challenging a job transfer in an unlawful employment discrimination claim under Title VII of the Civil Rights Act of 1964 must show that the transfer caused some identifiable harm, but the harm does not need to be significant.
Quick Hits
- The Supreme Court ruled that employees challenging job transfers under Title VII do not need to show that they faced significant harm.
- The ruling could open the door for more Title VII discrimination claims beyond those alleging traditional claims over adverse employment actions, including potentially reverse discrimination claims challenging employer DEI programs.
The Supreme Court decision in Muldrow v. City of St. Louis rejected a standard that employees show that a transfer caused a “materially significant disadvantage” or any other heightened bar, resolving a circuit split on this issue.
The decision revived a female police officer’s claim that a forced lateral job transfer to a less prestigious position that had the same pay but had different hours and responsibilities, among other differences, was allegedly because of her sex in violation of Section 703(a)(1) of Title VII.
“What the transferee does not have to show … is that the harm incurred was ‘significant,’ … [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar,” Justice Elena Kagan wrote in the Court’s opinion. Three justices filed separate opinions concurring with the judgment.
The ruling in the closely watched case eases the path for Title VII claims over job transfers and could potentially open the door for more Title VII discrimination claims beyond those alleging traditional claims over adverse employment actions, namely hiring, firing, and promotion decision, including reverse discrimination claims challenging employer diversity, equity, and inclusion (DEI) initiatives. Such claims have faced increased scrutiny since the Supreme Court’s June 2023 decision on race-conscious admissions in higher education.
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