KCNF attorney Steve Pershing has co-authored an amicus brief filed in the Supreme Court in Muldrow v. City of St. Louis on behalf of the National Employment Lawyers Association (“NELA”), the NAACP Legal Defense Fund (“LDF”), and the National Women’s Law Center (“NWLC”). The brief, principally authored by veteran employment lawyer Carolyn Wheeler of Katz Banks Kumin, argues that Title VII does not say a job transfer has to cause a “significant disadvantage” to an employee, such as a cut in pay or benefits, to trigger the law’s protections. Last year Mr. Pershing and Ms. Wheeler wrote an amicus brief to the same effect for the Metropolitan Washington Employment Lawyers Association (“MWELA”) in a D.C. Circuit discriminatory transfer case, Chambers v. District of Columbia. In that case, a majority of active D.C. Circuit judges agreed with MWELA’s position, overruling their own 20-year-old precedent and contributing to a split of federal Circuits that the Supreme Court in Muldrow will now address. Ms. Wheeler and Mr. Pershing also co-wrote an amicus brief for NELA in Muldrow this past January, urging the Supreme Court to grant review.
The NELA-LDF-NWLC brief contends that requiring evidence that a transfer caused “materially significant disadvantage” beyond the inequality in treatment re-introduces a version of the “separate but equal” doctrine rejected in Brown v. Board of Education, the landmark 1954 Supreme Court decision holding that “separate is inherently unequal.” The brief also notes that in addition to burdening bias victims with an intolerable stigma of inferiority, workplace discrimination creates and exacerbates economic disparities over the long term, particularly for women of color and immigrant women, and was outlawed in Title VII in part for those reasons. And it argues, citing numerous social science studies, that the noneconomic aspects of terms, conditions and privileges of employment are just as critical to employees as wages or salaries.
This amicus brief is one of several filed as part of a five-year-old Title VII suit in which Jatonya Muldrow, a St. Louis police sergeant, alleged that, due to her gender, she was moved from a prestigious intelligence division to a different role and later denied another transfer request.
The Supreme Court will hear arguments in Muldrow later this year or early next year. A decision is expected by June 2024.
For additional news coverage on this issue, please view Groups Tell High Court Transfers Can Be Unlawful Job Bias, Law360. (Subscription required.)