Lindsay Burke’s commentary was included in a Law.com article examining the Supreme Court’s Muldrow v. City of St. Louis decision. The court rejected a lower court ruling requiring Title VII plaintiffs to show that a discriminatory job transfer resulted in “significant” harm, reviving a lawsuit from a police officer claiming she was moved out of a prestigious task force because of her gender.
Lindsay said the decision likely means more employer decisions will “make it through the front door” of federal courthouses and survive the initial pleading stages of Title VII litigation. But because the Muldrow ruling preserved the requirement that plaintiffs show that an action was taken because of a protected characteristic and caused harm, she said it doesn’t alter the evidentiary burden of plaintiffs “on the back end.” “I’m not sure they’ll end up losing many more cases,” she said of Title VII-covered employers following the court’s ruling.
Discussing the Muldrow ruling’s effect on DEI programs, Lindsay said that “any employer program that is restricted to employees of certain race or gender or ethnicity has come under heightened scrutiny as a result of [SFFA v. Harvard] last summer and this case will probably renew, refresh the scrutiny.”
Lindsay added the Muldrow decision clarified that the alleged discrimination must cause harm and that a lot of challenges to DEI programs “won’t meet that standard. Let’s say you’re a plaintiff challenging a mentorship program. You’ll have to show that not being able to participate in the program has left you worse off, has caused some kind of harm.”
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