Supreme Court considers whether police officer's job transfer was sex discrimination under Civil Rights Act
As an officer in the intelligence division of the St. Louis Metropolitan Police Department, Sgt. Jatonya Clayborn Muldrow worked on public corruption and human trafficking cases, and at one point she led the gun crimes unit. She was assigned to an FBI task force, which brought overtime pay opportunities and a police vehicle she could drive home at night.
“The intelligence division is seen as the premier bureau to be in in our department,” she said in a deposition. “You work more sensitive and what people deem as important investigations. You have … more opportunity for career growth because you are around more commanders.”
When Muldrow got a new commander in 2017, however, she was transferred from the “premier” bureau to a regular police district, leading to her lawsuit over alleged sex discrimination under Title VII of the Civil Rights Act of 1964. A key question from her case is now going before the U.S. Supreme Court, and it has potential ramifications for workers and employers across the nation.
From elite to back on the beat
When Capt. Michael Deeba took over as the new head of the intelligence division, the outgoing commander advised him that Muldrow was a “workhorse” and a sergeant he could rely on because of her nine years of varied experience in the division, court papers say.
But Deeba soon arranged for Muldrow’s unceremonious transfer to a regular police district, and he replaced her with a male officer with whom he had previously worked.
“I wanted to refocus on violent crime,” Deeba said in a deposition. “I wanted a sergeant who I had knowledge of that was extremely efficient with street operations and supervising those tasks with a very dangerous job.”
Reassigned to the Fifth District, Muldrow once again had to wear a uniform and work weekends supervising local patrols. She lost her FBI task force position and was removed from her ongoing human-trafficking investigations. Her pay and other benefits did not change. But in Muldrow’s view, she lost practical job advantages and prestige.
“I went from straight days, weekends off with a take-home car and more visibility and responsibility within the department to a rotating schedule with few weekends off, assigned to a contained patrol area, uniformed patrol, marked police car, wearing the duty leather [and] vest,” Muldrow said in her 2019 deposition.
Muldrow sued the city of St. Louis under Title VII, arguing that her forced transfer out of the intelligence division was a result of sex discrimination. Besides the suit’s suggestion that Deeba considered the position too dangerous for the female sergeant, it details other alleged indications of sex discrimination.
For example, court papers say Deeba referred to male sergeants by their ranks, such as “Sgt. Smith,” while on at least one occasion he addressed her as “Mrs.”
“We were all sergeants in the room, so why make the distinction between the females and the males?” Muldrow said in her deposition.
Also, the suit alleges, Muldrow was the only sergeant transferred out of the division upon Deeba’s arrival. And while some female officers kept their positions in the unit, three other female officers (and two male officers) were transferred out, and Deeba only brought male officers into the unit.
Muldrow ran into a buzzsaw in federal district court, which granted summary judgment to the city without reaching her main sex-discrimination claims. The court held that Muldrow’s Title VII case based on her transfer from the intelligence division failed because she could not prove that the transfer amounted to an “adverse employment action.”
The St. Louis-based 8th U.S. Circuit Court of Appeals affirmed, citing circuit precedent that that such an “adverse employment action” under Title VII must involve “a tangible change in working conditions that produces a material employment disadvantage.”
The court observed Muldrow’s transfer “did not result in a diminution to her title, salary or benefits” or “a significant change in working conditions or responsibilities.” She simply expressed “a mere preference for one position over the other,” the court said.
Who should make public safety decisions?
Muldrow sought Supreme Court review with the support of President Joe Biden’s administration, which said there was a circuit split over whether all job transfers were covered by Title VII’s nondiscrimination categories. The justices agreed to decide whether Title VII prohibits discrimination in transfer decisions “absent a separate court determination that the transfer decision caused a significant disadvantage.”
The case, Muldrow v. City of St. Louis, holds high stakes for workers and any employer covered by Title VII.
“Local governments are one of the nation’s largest employers, collectively,” says Amanda Karras, the executive director and general counsel of the International Municipal Lawyers Association. “One of the most significant concerns for us in this case are the public safety implications. Police and fire departments require the proper personnel in the proper place at the proper time.”
For law enforcement in particular, which is facing critical officer shortages, “police chiefs and sheriffs need to be allocating their personnel to meet the needs of their communities,” Karras says. “It may mean disbanding a specialized unit or shifting officers from the day shift to the night shift because more crime occurs at night. At the end of the day, who should be making these public safety decisions, the chiefs and sheriffs, or the federal courts?”
The IMLA joined an amicus brief supporting St. Louis filed by the National League of Cities and other municipal groups. Other groups representing public schools and private employers have also chimed in.
The U.S. Chamber of Commerce, in an amicus joined by other business groups, argues that a general labor shortage in the country will only be exacerbated by a legal rule that subjects all job transfers to potential anti-discrimination liability under Title VII.
“To respond to the challenges posed by the labor shortage, employers must have sufficient flexibility to transfer employees as needed,” the business groups’ brief says.
A return to the intelligence division
Both Muldrow’s lawyers and the Biden administration argue that all job transfers are subject to Title VII’s nondiscrimination protections.
“By being involuntarily moved because of a protected characteristic, the employee has already been treated worse than her similarly situated colleagues,” Muldrow’s lawyers argue in a brief.
U.S. Solicitor General Elizabeth B. Prelogar, in a brief supporting Muldrow, argues that “transferring or refusing to transfer an employee because of her sex falls squarely within the plain meaning of Title VII’s prohibition on ‘discriminat[ing] against an individual with respect to’ the ‘terms, conditions or privileges of employment.’”
Federal appeals courts that have applied a requirement for some additional material disadvantage from a transfer “have done so without due consideration of the statutory text,” Prelogar says.
Amy J. Wildermuth, a law professor at Ohio State University, and Suja A. Thomas, a law professor at the University of Illinois in Urbana-Champaign, filed an amicus brief in support of Muldrow that also focuses on textual arguments for a court that seems to embrace them.
“If you are faithful to what Congress wrote here, this is a really broad statute,” Wildermuth says, referring to Title VII’s wording about its scope. “For many years, there have been lower courts that have struggled with this transfer question. ‘How do we know if this was a good transfer or a bad transfer?’ Maybe they have worked themselves down a road they should not have gone in the first place.”
The city of St. Louis argues in its brief that the text of Title VII is on its side. “This court has long held that the statutory phrase ‘discriminate against,’ as used in Title VII, requires the complaining plaintiff to show objectively material harm,” the city argues.
Adopting Muldrow’s arguments “would allow Title VII claims against private, state- and local-government employers for workplace changes and assignments based on an employee’s personal preferences, without any proof” of such material harm, the city says.
As for Muldrow’s situation, the city argues that there was a need for sergeants in the regular district where she was transferred, and her job there was no less dangerous than her intelligence division assignment. The city also points out that Muldrow was eventually reassigned to the intelligence division. This came after her original supervisor was reinstated as head of the division.
“All told, [Muldrow] spent only eight months out of her over 20-year career with the department as a sergeant in the Fifth District,” the city said.
Muldrow’s lawyers responded by again citing the many differences between the prestige assignment in the intelligence division and the “routine police work” in the Fifth District.
“More could be said about why, viewed from the objective perspective of a veteran police investigator with experience solving the most difficult crimes and with access to the top brass, the job in intelligence would be more challenging and prestigious than the job in the Fifth District,” Muldrow’s lawyers say. But that has nothing to do with whether she was discriminated against based on her sex, they say, which she deserves her chance to prove in court.