Supreme Court ruling facilitates lawsuits against employers for DEI issues

The Supreme Court on Wednesday made a decision that has largely flown under the radar, but has big implications for employers who have diversity, equity, and inclusion (DEI) programs.

The Supreme Court ruled 9-0 in favor of St. Louis Police Sergeant Jatonya Clayborn Muldrow, who sued the St. Louis Police Department (SLPD) after she was transferred from one department to another against her wishes. Muldrow worked for nearly 10 years in the SLPD’s specialized Intelligence Division, but in 2017, the new Intelligence Division commander requested she be transferred from the unit so she could be replaced with a man.

The request was approved and Muldrow was transferred to a position where she was now “supervising the day-to-day activities of neighborhood patrol officers,” instead of working in the Intelligence Division. While her rank and pay remained the same, her job changed and she lost the use of an unmarked take-home vehicle, as well as a more regular schedule where she had weekends off.

Muldrow sued, claiming she was discriminated against because she was a woman, a violation of Title VII of the Civil Rights Act. A lower court found she had not been discriminated against because she did not show that she had been “significantly” harmed by the transfer, so Muldrow appealed, eventually getting her case before the Supreme Court.

The Supreme Court determined that there was no threshold for harm, and that someone alleging discrimination “does not have to show … that the harm incurred was significant. Or serious, or substantial, or any similar adjective.”

Typically, Title VII prohibits employers from discriminating on the basis of “race, color, religion, sex, or national origin” when it comes to “compensation, terms, conditions, or privileges.”

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With the Supreme Court decision stating that an employee doesn’t have to show “significant” harm, many have taken the new ruling to mean it will be easier for women and minorities to sue based on alleged discrimination.

The American Civil Liberties Union (ACLU), for example, touted the ruling as “a huge victory for workers and workplace equality.”

But some conservatives have noted that this ruling could make it easier to sue employers who have DEI programs that favor women and minorities.

The Daily Signal noted that it’s “fashionable for corporate employers to create race- and sex-based employment conditions and privileges as part of their DEI initiatives.” The outlet pointed to LinkedIn’s “employee resource groups,” which provide mentoring and training programs for “systemically marginalized” groups. The outlet suggests that these programs would fall under the “privileges of employment,” mentioned under Title VII, and that the additional pay given to leaders of these groups would count as “compensation” under the law.

The ACLU pushed back on this notion, with Ming-Qi Chu, the deputy director of the organization’s Women’s Rights Project, dismissing the idea as “fearmongering.”

“The fearmongering of DEI opponents has no basis in law and fundamentally misunderstands how most DEI programs work. The purpose of DEI and other remedial workplace programs is to improve the process by which employment decisions are made and close the gap in opportunities among workers. They do not disadvantage any particular worker. This is why they have long been held lawful. These scare-tactics are trying to chill employers’ commitment and investment in expanding workplace opportunity. We won’t let them,” she said in the ACLU’s statement regarding the Supreme Court decision.