Supreme Court case could spark rush of reverse-discrimination claims

The case also is being watched by employment attorneys and some conservatives who say a broad ruling for Muldrow could open the door to a flood of reverse discrimination claims against certain workplace diversity, equity and inclusion programs — such as mentoring and training programs for underrepresented groups — that ordinarily would not survive in court. Such complaints have become more common since the Supreme Court overturned race-conscious college admissions in June.

“The Supreme Court is going to address a very fundamental aspect of Title VII, namely: What does it cover? What is actionable under Title VII?” said Ishan Bhabha, a partner at Jenner & Block and a co-chair of the law firm’s DEI Protection Task Force, referencing the section of the 1964 Civil Rights Act that prohibits discrimination by employers. “Given that Title VII is one of the main avenues through which challenges to DEI programs … are being brought, certainly what the Supreme Court says here is going to have a significant impact.”

A ruling narrowly focused on the facts of Muldrow’s case — alleged discrimination through a lateral transfer — could have little impact on DEI programs, Bhabha and other legal experts said. But a broader ruling that relaxes the need to prove harm could threaten DEI programs that previously had been thought safe.

“If the Supreme Court adopts a broader understanding of adverse action in Muldrow, that’s going to open the door to more colorable discrimination challenges, period,” Andrea Lucas, an EEOC commissioner appointed by Donald Trump, said in an interview. “That applies to possible challenges to DEI programs as much as any employment discrimination claim.”

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Muldrow alleges that St. Louis Police Department officials discriminated against her when they transferred her out of her job within the intelligence division, where she had been deputized as an FBI agent, had a steady schedule, and investigated public corruption and human trafficking cases. The sergeant’s new job at a district-level station came with none of that prestige, she alleges. Even though her pay remained the same, she lost her FBI privileges, worked patrol and was put on a schedule in which she worked weekends. She was replaced in the intelligence division by a male sergeant, and no male sergeants had been transferred out of the unit alongside her, she alleges.

But Muldrow’s case has not proceeded to trial because a district court judge — as well as a panel on the U.S. Court of Appeals for the 8th Circuit — held that Muldrow failed to demonstrate that the transfer amounted to an “adverse employment action” that caused material harm.

The high court will consider whether Title VII prohibits discrimination in employer transfer decisions without additional proof that the transfer caused tangible harm, or “significant disadvantage.” Title VII prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Many federal jurisdictions impose a form of the significant disadvantage standard for employment discrimination claims.

With support from the Biden administration and advocacy groups like the NAACP Legal Defense Fund, Muldrow argues that no such requirement exists in the text of Title VII. Conversely, the city of St. Louis counters that the statute requires a showing of harm in transfer decisions — and eliminating it would swamp the courts with relatively minor workplace grievances.

A ruling for Muldrow could dramatically expand the definition of an actionable claim under Title VII, legal experts say — an expansion that some employment attorneys argue is long overdue because legitimate discrimination lawsuits often fail to overcome barriers like the “significant disadvantage” requirement. Fewer than 5 percent of all discrimination plaintiffs receive any form of relief, according to a 2015 Minnesota Law Review study.

“The state of the law is just terrible,” said Suja A. Thomas, a University of Illinois law professor who filed a brief in support of Muldrow. “They are not allowing discrimination claims to go through, and hardly anything gets tried because nothing gets to a jury and it gets dismissed.”

But removing the significant disadvantage requirement could also lead to more legal complaints from employees who feel excluded from DEI programs meant to mentor, train and support underrepresented groups, employment attorneys say.

Until recently, such programs have been operating under the assumption that their services could be limited to specific groups so long as those groups did not gain an advantage in hiring, firing, promotions and salaries, said Lindsay Burke, a partner at Covington and co-chair of the law firm’s employment practice group. Lawsuits that have challenged such programs so far have not gained much traction.

But “depending on exactly the contours of the Supreme Court’s decision [in Muldrow], then they would be vulnerable to challenge,” Burke said.

She emphasized that not every program would be vulnerable because many are designed to meet a core obligation of Title VII: equal employment opportunity. The programs that would be most vulnerable would be those that offer tangible employment benefits or are limited to employees of a specific race or gender, she said.

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There has already been a profusion of lawsuits, as well as complaints to the Equal Employment Opportunity Commission, since the Supreme Court ruled in June that race-conscious admissions programs at Harvard University and the University of North Carolina violated the equal protection clause of the Constitution — a historic ruling that upended affirmative action in college admissions.

The same day as the June ruling, Reuters published an op-ed by Lucas, the EEOC commissioner, that listed a number of programs that she saw as legally vulnerable, especially in light of the Muldrow case. They included race-restricted mentoring, sponsorship or training programs; policies that tie executive or employee compensation to achieving demographic targets; policies that select finalists for job interviews partially based on diverse candidate slates; and various internship and fellowship programs open only to underrepresented groups.

“Those kinds of initiatives already pose significant legal and practical risks given the current state of the law,” Lucas told The Post. “But a decision in Muldrow by the Supreme Court to apply a more expansive reading of the ‘terms, conditions and privileges’ provision of Title VII certainly could clarify and heighten the risks posed by those kinds of programs.”

Other legal experts doubt the court will issue such a broad decision and say concerns around DEI are overblown. Thomas, the University of Illinois professor supporting Muldrow, said discrimination claims are so rarely tried in court that it’s unlikely a ruling for Muldrow would imperil DEI programs.

“I may be wrong, but I just don’t see this DEI thing as a thing,” Thomas said.

Nonetheless, conservative groups are watching closely. Like the Biden administration, Gene Hamilton, vice president and general counsel at the conservative America First Legal, argued that the high court “must give the plain text of the statute the meaning Congress stated,” adding that “[j]udges have no authority to rewrite statutes.” The organization has filed numerous reverse-discrimination complaints over DEI programs against major companies, including Unilever and Alaska Airlines.

“Employers should pay attention to what happens in these cases, but above all, they should stop all discriminatory programs of any kind immediately,” Hamilton said in an emailed statement to The Post.

Hamilton referenced two other federal cases that also examine actionable employment conditions under Title VII. One of those cases played out in August, when the U.S. Court of Appeals for the 5th Circuit ruled that nine female detention officers with the Dallas County Sheriff’s Department could move ahead with a lawsuit alleging that the agency allows male jailers — but not female ones — to take entire weekends off. The ruling in Hamilton v. Dallas County, which turned on a question similar to the one presented by Muldrow, expanded the scope of what is considered discrimination in the workplace.

While the Dallas case is, for now, largely confined to the 5th Circuit, it opens the door to reverse-discrimination claims, according to a concurring opinion by U.S. Circuit Judge James C. Ho, a Trump appointee. The court’s “decision today will help restore federal civil rights protections for anyone harmed by divisive workplace policies that allocate professional opportunities to employees based on their sex or skin color, under the guise of furthering diversity, equity, and inclusion,” Ho wrote.

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Keith Markel, a partner and co-chair of labor and employment at the Morrison Cohen law firm in New York, said the cases are unlikely to affect DEI programs that focus on hiring from diverse pools of applicants. Rather, a ruling in Muldrow could affect DEI programs that attempt to diversify certain departments through transfers, he said.

If the Supreme Court finds that Muldrow’s transfer is an adverse employment action, then “employers might start to think twice about making such changes, even if the employer is well intentioned in trying to correct historical imbalances in the workplace,” Markel said.