Supreme Court to Decide Discriminatory Lateral Transfer Protections
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Whether involuntary lateral reassignments can be “significant and material employment actions” that violate an employee’s Title VII rights is a question the Supreme Court will decide this term.
For many years, Jatonya Clayborn Muldrow was a Sergeant with the St. Louis, Missouri Police Department. In the almost ten years leading up to her involuntarily transfer in 2017, Sgt. Muldrow worked in the Police Department’s Intelligence Division on public corruption and human trafficking cases.
Just before the 2017 transfer, Sgt. Muldrow’s supervisor—who she says referred to male officers by their rank, but to her as “Mrs. Clayborn—told his direct reports that he did not believe in “blind transfers.” Then, without warning, Sgt. Muldrow’s supervisor involuntarily transferred her and the other two female officers in the Intelligence Division out of the unit. The supervisor purportedly believed the work was too “dangerous.”
Once transferred, Sgt. Muldrow’s pay remained the same. But her schedule, responsibilities, supervisor, workplace environment, and other job requirements and benefits changed entirely. Unhappy with her forced transfer, Sgt. Muldrow requested a lateral transfer to become administrative aide to Captain Angela Coonce, a more desirable role with a “high profile.” Cpt. Coonce was amenable to the transfer, but she said her superiors prohibited her from making the hire.
Sgt. Muldrow sued the Police Department in Missouri state court under Title VII of the Civil Rights Act of 1964. She claimed the Police Department’s decision forcing her transfer violated her Title VII rights for sex discrimination with respect to her “compensation, terms, conditions, or privileges of employment” and failing to transfer her to the administrative aide position. The Police Department removed the case to the U.S. District Court for the Eastern District of Missouri, which subsequently granted the Department’s motion for summary judgment.
In granting the Police Department’s summary judgment motion, the district court explained that under Eighth Circuit precedent a discriminatory transfer that does not “produce a material employment disadvantage” is “not an adverse employment action” for which an employee is entitled to sue. The court denied Sgt. Muldrow’s second claim, related to the administrative aide position, because the denied transfer would not have “significantly affected her future career prospects.”
Sgt. Muldrow appealed the district court decision to the U.S. Court of Appeals for the Eighth Circuit. The appeals court affirmed the district court decision, holding that the forced transfer and refusal to transfer were not “adverse employment actions” and thus not actionable for suit under Title VII.
On petition for a writ of certiorari to the U.S. Supreme Court, Sgt. Muldrow argued the Eighth Circuit’s decision conflicted with the plain language of the Title VII statute. She argued that language—forbidding discrimination against an employee “with respect to his compensation, terms, conditions, or privileges of employment”—is “everyday English” with “straightforward” meaning that encompasses involuntary lateral transfers.
Sgt. Muldrow’s petition said that only the D.C. and Sixth Circuits followed straightforward, plain language interpretations of the Title VII prohibition, and urged the Supreme Court to follow suit. Her arguments found traction as the Supreme Court granted her petition and ordered the parties to fully brief the legal issue.
Sgt. Muldrow’s case drew national attention and major national employment organizations including the National Treasury Employees Union and the National Employment Lawyers Association, filed amicus briefs in support of her position. In support of the Police Department’s position, the State of Arkansas (joined by 15 other states) filed a brief, as well as the Chamber of Commerce and other business associations, and associations of local government entities.
On December 6, 2023, the Supreme Court heard oral arguments in the case and is now set to decide the issue. We will report on the Supreme Court’s decision when it is issued.
The Supreme Court filings in this case, Clayborn Muldrow v. City of St. Louis, are available here: https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/22-193.html.
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