On June 30, 2023, just one day after the Supreme Court issued its decision in the Students for Fair Admissions cases striking down race-conscious college admissions programs,1 the Court agreed to hear a case next Term that could bolster legal challenges to corporate Diversity, Equity, and Inclusion (DEI) programs.2 The case, Muldrow v. City of St. Louis, concerns Title VII, the statute that prohibits employment-discrimination on account of race, color, religion, sex (including sexual orientation and gender identity), and national origin. Muldrow gives the Court an opportunity to resolve a circuit split about the types of discriminatory employment practices that are actionable. This case has the potential to lower the standard for bringing a Title VII action, which would expose employers to a wider range of litigation implicating their DEI initiatives.
While Muldrow does not squarely address DEI efforts, the Supreme Court's forthcoming opinion could put those efforts at greater risk. If the Court were to interpret Title VII broadly, an employee excluded from a DEI program because of a characteristic Title VII covers, such as race or sex, could succeed in a reverse-discrimination suit even if exclusion from the program did not cause any significant harm. Broadening Title VII in this way could spill over into other areas of anti-discrimination law as well. Although the Court may well decline to take this approach, Muldrow is worth monitoring given these potential implications.
Background
Section 703(a)(1) of Title VII forbids employers from discriminating on the basis of race, sex, and other protected characteristics with respect to employees' "compensation, terms, conditions, or privileges of employment."3 Lower courts have typically interpreted Section 703(a)(1) to require plaintiffs to demonstrate an "adverse employment action,"4 but such terminology does not appear in the statute itself. The judge-made legal standard for how much harm a plaintiff must experience to have suffered an "adverse employment action" cognizable under Title VII varies from circuit to circuit.5
In this case, Jatonya Muldrow'a sergeant with the St. Louis Police Department'challenged her involuntary transfer from one division to another, arguing that she was transferred solely on the basis of sex. Though her compensation and formal rank remained unaffected, Muldrow claimed that her transfer led to altered scheduling and responsibilities, thereby constituting discrimination in her...
