The world is abuzz with the Supreme Court's decision in the discrimination case Muldrow v. the City of St. Louis.
Why?
Because it's likely the death knell for corporate DEI cases.
This is going to take a minute to unpack, so strap in and prepare for an adventure.
The case itself isn't anything all that noteworthy. Sergeant Jatonya Claiborn Muldrow got transferred from one job to another by the St. Louis Police Department, and she claims it's because she's a woman.
The transfer was the same title and pay, the same road to advancement, and thus had really no "significant" harm for Sergeant Muldrow.
While Muldrow's rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, Muldrow now supervised the day-to-day activities of neighborhood patrol officers. Her new duties included approving their arrests, reviewing their reports, and handling other administrative matters; she also did some patrol work herself. Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. And the change of jobs made Muldrow's workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. Now she was placed on a "rotating schedule" that often involved weekend shifts.
The commanding officer who made the transfer called her "Mrs." and testified under oath that he didn't think she was as cut out for dangerous work as her male replacement.
It was pretty evident that it was a case of discrimination, but the question revolved around whether the discrimination led to "significant" harm as the law called for, or if the loss of perks listed were just minor annoyances, which are allowed under Title VII.
Somehow the case made it all the way to the Supreme Court, and the court unanimously ruled it was a Title VII violation.
And if Justice Alito had written the majority opinion, everyone on the Right and Left would have been happy. It was a case of clear discrimination.
Justice was served.
However, he didn't write the opinion.
Liberal Justice Elena Kagan wrote the opinion, and it's a doozy, especially this part:
To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.
What the transferee does not have to show, according to the relevant text, is that the harm incurred was "significant." Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. "Discriminate against" means treat worse, here based on sex. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm.
In other words, she essentially ended the minor annoyance caveat that's been integral to Title VII claims.
Alito wrote a concurring opinion pretty much ridiculing Kagan's:
I do not join the Court's unhelpful opinion. For decades, dozens of lower court judges, with a wealth of experience handling Title VII cases, have held that not every unwanted employment experience affects an employee's "terms" or "conditions" of employment. The lower courts have used various verbal formulations to express this point, and the Court, dubious about the words they had selected, granted review to provide guidance. Now, after briefing and argument, that guidance is as follows: Title VII plaintiffs must show that the event they challenge constituted a "harm" or "injury," but that the event need not be "significant" or "substantial."
I have no idea what this means.
One thing it could mean is the end of DEI initiatives.
Did you have to sit through a two-hour DEI presentation because you're a white male?
That's precious time wasted; sounds like harm to me!
This is why the Left is worried:
Check out this freak-out from the deputy director of the Women's Rights Project, Ming-Q Chu:
The Supreme Court just delivered a big win for workers and workplace equality - but conservatives are trying to cast the Court's decision as a blow to workplace equality and inclusion efforts. We can't let them.
We can't let them?
To quote Justice Alito
I have no idea what this means.
The Right, meanwhile, is celebrating:
Before anyone gets too excited though, consider that the Left could use the lowering of the bar of "significant" harm to gut every company and organization in the country.
How much harm does a microaggression cause?
If the harm no longer has to be significant, then any small slight regarding race or sex can be considered a violation.
Remember that HR video about how white people are mosquitoes?
White people could sue for discrimination because their reputations are being harmed by being compared to mosquitoes. People of color can sue for the microaggressions talked about in the video perpetrated by white people. By the end of settling all the lawsuits, the company will be out of money, and everyone will be out of work and destitute.
"Significant" harm was a significant standard, and without that qualifier, there will be significant consequences.
Make sure to thank Justice Kagan!
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