Orrick Argues Major Employment-Discrimination Case in U.S. Supreme Court

• Orrick Partner Bob Loeb presented oral argument to the U.S. Supreme Court in a major Title VII case, Muldrow v. City of St. Louis. The transcript and audio of the December 6 Supreme Court oral argument are available here.
• The Court is reviewing whether an employment-discrimination claim about a lateral transfer or assignment can proceed to a jury without any proof of disadvantage resulting from the employment decision. The case may have a significant impact in many discrimination cases in which workers allege they were transferred for discriminatory reasons.
• Representing the City of St. Louis, Bob argued that Title VII’s text and Supreme Court precedent interpreting that text require a plaintiff to show objective, material harm to make out a Title VII employment-discrimination case against her employer. He explained this harm requirement is “not a high bar, but there must be something more than personal preferences or the particular sensitivities of the employee,” to weed out lawsuits based on trivial grievances and petty slights. He detailed how courts for more than 30 years have properly read the statute to require “a material objective harm, viewed “through the lens of an objective employee, not the frailties of a particular sensitive employee.” He further explained that removing this requirement would open a floodgate of burdensome litigation: “If you open the door to those kind of lawsuits and had no meaningful threshold, the federal courts would become the super-personnel department not just for all private employers but for state governments and for local governments.”
• At oral argument, counsel for the employee, Brian Wolfman, argued that any action taken by the employer (even the distribution of different color pens) automatically satisfied the harm requirement if the employee claims it was taken based on a protected classification. As the National Law Journal reported: Justice Elena Kagan “pressed Muldrow’s attorney on whether eliminating an injury requirement would necessarily render illegal under Title VII those efforts to improve equality in the workplace…. Justice Amy Coney Barrett posed the same question about the legality of efforts to increase diversity.”
• The stakes are particularly high for police departments, which must routinely reallocate staff to respond to evolving crime patterns, personnel shortages, and other needs of the community and department.
• Amici filed briefs in support the City included briefs by the National School Boards Association, Chamber of Commerce of the United States of America (joined by the National Federation of Independent Business Small Business Legal Center, Inc., Restaurant Law Center, Inc., and National Retail Federation), sixteen states, and multiple organizations that represent thousands of counties, towns and cities.
• A decision in the case is expected in the spring of 2024.

In addition to Bob, the Orrick team includes senior counsel Tom Bondy and associates Robbie Manhas, James Flynn, and Zachary Hennessee. Lead counsel for the City of St. Louis is Sheena Hamilton, City Counselor.