Federal and New Jersey employment law both prohibit discrimination because of an employee’s gender. The United States Supreme Court’s recent decision in the case of Muldrow v. City of Saint Louis establishes what employees must prove to have a viable lawsuit for gender discrimination under Title VII of the Civil Rights Act of 1964. Because New Jersey courts often look to Federal case law about Title VII to guide them in interpreting New Jersey employment law, it is likely that this standard will be adopted as the law in New Jersey.
Background
Jatonya Clayborn Muldrow was a long serving, decorated officer with the St. Louis Police Department. Justice Elena Kagan described the factual background of the case.
From 2008 through 2017, Sergeant Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. During her tenure there, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. By virtue of her Division position, Muldrow was also deputized as a Task Force Officer with the Federal Bureau of Investigation—a status granting her, among other things, FBI credentials, an unmarked takehome vehicle, and the authority to pursue investigations outside St. Louis. In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a “workhorse”—still more, that “if there was one sergeant he could count on in the Division,” it was Muldrow.
But the new Intelligence Division commander, Captain Michael Deeba, instead asked the Department to transfer Muldrow out of the unit. Deeba wanted to replace Muldrow—whom he sometimes called “Mrs.” rather than the customary “Sergeant”—with a male police officer. That officer, Deeba later testified, seemed a better fit for the Division’s “very dangerous” work. The Department approved the transfer against Muldrow’s wishes. It reassigned her to a uniformed job in the Department’s Fifth District.
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.
Muldrow’s Suit
Muldrow sued, arguing that her transfer was an adverse employment action, a detrimental change in the terms and conditions of her employment because of her gender, and thus gender discrimination in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment.
The District Court, however, disagreed. It dismissed her case on summary judgment before trial, finding that even if everything she said was true, Title VII required that she show that her transfer caused a “significant” change in her working conditions, causing her to suffer a “material employment disadvantage.” Muldrow appealed, but the United States Court of Appeals for the Eighth Circuit affirmed the District Court’s decision for the same reasons.
Muldrow appealed to the United States Supreme Court.
The Supreme Court’s Decision
The Supreme Court unanimously rejected the lower courts’ reasoning, vacated these decisions, and remanded the case for a trial on the merits.
Justice Kagan wrote the Supreme Court’s opinion. She explained that the standard which the lower courts imposed was artificial and conflicted with Title VII’s plain language. Title VII prohibits discrimination, including gender discrimination. Thus, all that is required by Title VII is for an employee to show that she was treated worse for a prohibited discriminatory reason, which in this case was Muldrow’s gender. The employee need only show that she suffered “some” harm as a result of the discrimination; she need not meet the heightened standard of showing “significant” harm as required by the lower courts.
Thus, the Supreme Court held that a transfer because of an employee’s gender (or other prohibited reason, such as religion or race) is sufficient by itself to show “some” harm, even thought she did not lose pay or rank.
It is significant that this case was decided unanimously. There were concurring opinions, which while they agreed with the decision, would have reached the same conclusion, but for different reasons. For example, Justices Thomas and Alito argued that while the Court reached the right decision, the “some” harm standard was too vague and difficult to apply.
Justice Kavanaugh, however, probably had the most rational explanation. He believed that the text of Title VII does not require an employee to prove a certain level of harm. Rather, he argued that the discrimination itself is the harm. Thus when an employee is treated differently and less advantageously because of her gender, or race, religion, etc., she has per se suffered the harm prohibited by Title VII.
In New Jersey’s Law Against Discrimination, New Jersey employment law also prohibits gender based discrimination. Indeed, it prohibits discrimination because of a wide range of reasons, far broader than the Federal Title VII. Since New Jersey state courts look to Federal cases interpreting Title VII to guide them on interpretation of the Law Against Discrimination, it is likely that New Jersey employment law will follow the “some” harm test adopted by the United States Supreme Court in its Muldrow decision.
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