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12.12.23

Goldberg Kohn Labor & Employment Principal Meredith Kirshenbaum is quoted in "Job Transfer Case May Implicate IE&D Programs," published in the December 11, 2023, edition of SHRM's HR Daily Newsletter.

The article concerns a recently heard U.S. Supreme Court case - Muldrow v. City of St. Louis - centered on lateral job transfers, which could also impact other employment policies and practices, especially the criteria for inclusion, equity and diversity (IE&D) initiatives. Pundits say that employers should bet on Muldrow widening Title VII's reach.

"Businesses should be mindful that any treatment perceived as being on the basis of a protected characteristic may be grounds for legal action."
Meredith Kirshenbaum

Under Title VII of the Civil Rights Act of 1964, employers cannot discriminate against workers with respect to their compensation, terms, conditions or privileges of employment because of their race, color, sex, religion or national origin.

In the article, Meredith Kirshenbaum advises that "businesses should be mindful that any treatment perceived as being on the basis of a protected characteristic may be grounds for legal action."

In Muldrow, a female police officer alleged sex discrimination. The court focused on whether tangible harm is required in order to prove discrimination in an involuntary job transfer. Examples of harm would be getting less pay, fewer benefits, less promotion potential, lower rank or unfavorable hours.

The tenor of the justices' questioning during oral arguments on December 6, 2023, suggests they will establish that an employee doesn't need to show additional harm to state a claim based on a discriminatory transfer. Justice Ketanji Brown Jackson noted plaintiffs won't receive damages if they don't show material harm for which they should be compensated.

Along with involuntary transfers, the case could have ramifications for other employment decisions, such as performance evaluations, disciplinary actions, client or project assignments, attendance policies, and work travel.

It's unclear when the court will issue its decision, but a ruling in favor of expanding Title VII could be a boon for opponents of IE&D programs. Critics have argued that such programs discriminate by excluding white men.