The Supreme Court Just Complicated Employer Diversity Initiatives
Rights groups say the court made it easier to sue employers, lawyers warn the ruling may also threaten diversity programs.

The US Supreme Court’s ruling that a St. Louis police sergeant can sue over a job transfer she claims was discriminatory was championed by human rights groups as “an enormous win for workers.”

However, hours after the decision Wednesday, lawyers were warning that the outcome could have a chilling effect on employers’ diversity initiatives because it adds to questions about what’s legal.

Jatonya Clayborn Muldrow sued the City of St. Louis after she was reassigned from the department’s intelligence division on public-corruption and human-trafficking cases to a job in the city’s Fifth District. Though she was paid the same, she said she had to start working weekends, had less prestigious assignments and lost access to high-profile people. In short, she argued, the transfer was negative for her, and it was made on the basis of sex.

Workplace discrimination due to sex or other protected characteristics — race, color, religion or national origin — is illegal, but courts across the country have disagreed about how substantial the unequal treatment must be to merit a legal claim. In this case, the city argued that Muldrow’s lateral move at the same pay grade wasn’t significantly harmful enough to meet the standard.

The Supreme Court disagreed, saying an employee just needed to show “some harm” under the terms of their employment, but it doesn’t need to be “material,” “substantial” or “serious.” The decision makes it easier for workers to sue over discriminatory job transfers.

Some employment lawyers say the same reasoning could be carried over to workplace development programs or employee resource groups designed to benefit traditionally underrepresented cohorts: for example, a fellowship that only accepts Hispanic students or a leadership program only open to women.

“Could you say that exclusion from participation in an mentoring or leadership program materially disadvantages someone?” said Jonathan Segal, a partner specializing in employment and labor law at Duane Morris. Even before the opinion, Segal was advising companies to eschew development programs that only allow people of protected groups to participate, he said. Now, he says, “the risk is even higher.”

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