High Court’s 9-0 Ruling Lowers Bar for Filing Anti-DEI Discrimination Lawsuits

A low-profile case decided Wednesday by the Supreme Court could have big implications for employers’ diversity, equity, and inclusion programs.

Muldrow v. City of St. Louis was a case about a female police officer who alleged that she was transferred from one department to another because of her sex. She argued that the transfer violated Title VII of the Civil Rights Act, which forbids “race, color, religion, sex, or national origin” discrimination with respect to employment “compensation, terms, conditions, or privileges.”

She lost in the lower court because she could not show that the transfer caused her “significant” harm. The lower court held that the transfer “did not result in a diminution to her title, salary, or benefits” and caused “only minor changes in [her] working conditions.”

A unanimous Supreme Court reversed, holding that any harm—whether significant or insignificant—satisfies Title VII.

Writing for the court, Justice Elena Kagan said that the policewoman “does not have to show … that the harm incurred was significant. Or serious, or substantial, or any similar adjective.”

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As Justice Brett Kavanaugh explained in his concurring opinion, if there’s no floor on the amount of harm you must suffer, then the harm requirement is satisfied by any change in “money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”

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Until Muldrow, cases challenging these programs faced the hurdle of having to prove “significant” harm. A judge might say, “Yes, you were discriminated against, but you didn’t really suffer.” To this, Kavanaugh and others would answer “discrimination is harm,” but that claim wouldn’t have gotten you anywhere.

A judge or jury sympathetic to DEI programs could easily say that a black person who was forced to work on certain projects to meet a client’s racial quota hadn’t suffered “significant” harm. Or that an Asian person denied the benefits of a mentorship program given to black employees hadn’t suffered “significant” harm. Or that a white person forced to undergo training telling her to “be less white” hadn’t suffered “significant” harm.

Today, that hurdle is gone. {snip}

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