How the Supreme Court Redefined Workplace Discrimination in Muldrow v. St. Louis

Episode Notes

Transcript

Matt Greer:

The tricky thing with Title VII is everybody’s in a protected class. Everybody’s in some group, but showing that that is why you were picked for something. It’s the causation. That’s the hard part.

Carolyn Wheeler:

How bad does it have to get for an employee to have an actionable claim of employment discrimination Under Title vii? The US Supreme Court recently held that an employee need only showed that they suffered some harm when alleging that they were discriminator transferred by an employer. In this episode, we are joined by experienced attorneys, Toni Jackson and Carolyn Wheeler, as the help makes sense of the case of Moro versus City of St. Louis. Along the way, Carolyn and Toni explore the decision’s, potential impact on future Title VII litigation and share practical insights on how to address other impacts in the workplace in light of the new standard.

Hello, hello, hello and welcome to the A BA Labor and Employment Law Podcast. I’m your host, Matt Greer. I’m looking forward to spending some time with you learning about what’s going on in the wide world of labor and employment law from distinguished lawyers in the field. When I’m not hosting the podcast, I work for the Washington State Public Employment Relations Commission, the agency charged with impartially administering Washington’s public sector collective bargaining laws. I wear a few hats there, including mediator, hearing examiner, arbitrator and trainer, always as a neutral, probably like you. My focus area is a niche and I would say even a niche within a niche in my case, in the labor and employment law universe, and I’m enjoying the opportunity to broaden my horizons through this podcast. I hope you are as well. On today’s episode, I’m really excited to welcome Toni Jackson and Carolyn Wheeler for a conversation on developments and Title VII employment Discrimination Law, in particular, the implications of the US Supreme Court’s recent ruling in Moro versus City of St.

Louis, a case defining what level of harm a plaintiff must show when alleging they were discriminator transferred by their employer. Toni and Carolyn are skilled attorneys with extensive experience handling these types of cases. Toni currently represents employers as a partner at Kroll and Mooring, and Carolyn represents employees and plaintiffs as a partner at Katz Banks Cumin. It’s truly an honor having them on the podcast to share their knowledge and wisdom with us. Be sure to check out their full bios in the show notes. Thank you so much for joining us, Carolyn and Toni, welcome to the show.

Toni Jackson:

Thanks, Matt. Yes, thank you so much.

Carolyn Wheeler:

Yeah, it’s great having you on. So I really appreciate you getting together to talk about this topic. It’s really an interesting topic. I think even for those who don’t practice in this area, I think this is an area really is of interest. A lot of folks just because it’s really fascinating kind of how these cases play out and the stories they tell. So as I mentioned in our introduction, we were going to start off our conversation by talking about the Moro case, the case that came down in April from the US Supreme Court. So I thought that I would go ahead even though I’m the less expert in the field of this area, but maybe take a stab at throwing out some of the facts for those people who are just hurrying about the case for the first time. Just so you have some context for that and then kind of turn it over to both of you to kind give us your insights about the case and anything I may have missed and some of the takeaways.

So the case dealt with the plaintiff whose name was Mulrow, and Mulrow was a female sergeant in the St. Louis Police Department. And for many years she worked in a prestigious kind of plain close headquarters type job. And as part of that, she worked closely with high ranking officials on high profile assignments. She had a regular weekday schedule and access to a take home vehicle. So a new commander came in and despite a positive endorsement of Moro from the outgoing commander, the new commander brought in a man to replace her. Moro was subsequently transferred to a uniform position where she supervised patrol officers. Her pay and rank remained the same, but she was no longer involved in those more prestigious assignments and she worked a rotating shift that included weekends. She also no longer had access to that take home vehicle. Moro sued the city alleging that the transfer discriminated against her based on her sex In violation of Title VII of this Civil Rights Act of 1964, the Federal district court granted the city’s motion for summary judgment finding that Moro did not show that she suffered a significant change in her working conditions producing material employment disadvantage.

This was a standard applied by the Eighth Circuit Court of Appeals. The eighth circuit then affirmed that decision. The both courts focused on the fact that Mojo did not suffer a loss of rank or salary when she was transferred. The Supreme Court overturned those judgments and said that instead of needing to show that they had a significant change in working conditions, that plaintiffs in these types of cases only need to show that they had some harm with respect to an identifiable term or condition of employment, but that harm does not need to be significant. So that’s the background of this case and where we come on the facts. And I’m curious, Toni and Carolyn, anything I missed there in terms of the facts or things that you think are important or any of the takeaways that you have to start off our conversation about the case?

Matt Greer:

Yeah, I think you certainly captured the key facts and it was a very typical case of a challenge to a transfer, which there are thousands of cases like that, and the eighth circuit was certainly not the only court that thought this kind of challenge is going to fail unless the individual can show some significant or serious material impact on the terms and conditions of their employment. So in some ways I think what’s really fascinating is why 60 years after the passage of Title vii, we get a decision explaining what really is it that would constitute actionable discrimination in terms and conditions of employment. So this case is about a transfer, but it fits within the part of the statute that says you can’t discriminate in terms conditions or privileges of employment. So obviously one big question is what other kinds of terms and conditions could one challenge.

Carolyn Wheeler:

Yeah, and that’s the bigger question that we might be getting into a little bit as part of this conversation and I’m sure people are curious about both of your thoughts on that. But Toni, what do you think? Any other takeaways from the case that you would add onto that?

Toni Jackson:

I mean, I do think that this case is a significant change in what plaintiffs must show under the significant harm standard in Title vii. As someone who enforced this statute at DOJ 10 years ago or so many a times said, oh, this transfer doesn’t rise to the level of something that’s actionable, we can’t go forward. But now I think with this some harm standard, we really don’t know what that means under this new standard. There’ll be a lot more cases surviving summary judgment and potentially going to a jury or a judge for a determination unless you agree with Judge Alito who said in his concurring opinion and everyone agreed on this, but Alito said he predicts the lower court judges will just mind the words they use, but will continue to do pretty much the same as what they’ve done over the years. So maybe he’s right. We’ll see.

Carolyn Wheeler:

Yeah, it was a unanimous decision to the judgment, but there were some interesting concurrences Alito I was going to bring up later on maybe Kavanaugh’s concurrence, which I thought was kind of fascinating as well, which maybe we can get into if you have time. Yeah, it’s interesting. So it sounds like this is, again, the title VII’s been around for a while, but there’s still some clarifications out there and this one provide a new standard for this type of piece of a discrimination type action. I guess I’m curious from your perspectives as practitioners in this field where you deal with clients on a daily basis as you’re kind of talking through cases and where you are on this, has it changed anything in terms of how you’re viewing these cases? Carolyn, when you’re getting a new client in who may be bringing their case, do you look at it differently in light of this new standard?

Matt Greer:

Certainly one could do that. I just want to say that people have always complained about these transfers that they didn’t want, and they’ve always told us about all of the terrible consequences of being forced into a different position much like Sergeant Mulrow did with her transfer. And it’s been frustrating that, well, none of that adds up to what a court would call an adverse action. Now it does if we can show it caused some harm. And I think Justice Kavanaugh’s concurrence, I will call it out right now. Now he listed a dozen ways a person could describe the harm of a transfer or the denial of a transfer and he just listed all these things, lesser prestige or longer commute or just all the things that might be considered some level of harm. Justice Kavanaugh wouldn’t have put in any requirement of harm. His view is that the discrimination itself is what’s harmful, and that by the way, was the result in his former circuit, the DC circuit, which had gone in bank and created the split in the circuits that caused the Supreme Court to take this up. And Justice Kavanaugh’s former circuit had said in a similar kind of transfer case, the person doesn’t have to show any harm at all. The discrimination is the harm, end of story, end of analysis. So I think that’s, that’s not quite what the majority said, but Justice Kavanaugh ended by saying he thought whether it’s his standard or the court’s some harm standard, 99.9% of the cases will come out the same.

Carolyn Wheeler:

Yeah, that was an interesting concurrence for me. It’s somebody who doesn’t necessarily practice in this area very much, but it was not what I expected to see from Justice Kavanaugh applying some of the stereotypes I would’ve had about what I would’ve guessed his position would’ve been on that, which I thought was interesting.

Matt Greer:

I realized, man, I didn’t even answer your question. If clients come in to say I wanted a transfer that I didn’t get or I didn’t got forced into one I didn’t want, obviously we would now say they’ve got a claim and try to resolve that. I’m not sure we would even need to litigate it because the law has now changed so dramatically that I think employers would be willing to try to resolve a dispute like that with somebody who’s still an employee that they weren’t giving a transfer or were trying to force to go somewhere else. I haven’t had this happen yet, but I think would be more amenable to a resolution of not taking that action that’s going to cause the person harm. So where I’m using it is more what we’ll get to later, whether other kinds of actions employers can take that would be under this some harm standard. But let’s hear Toni talk about

Carolyn Wheeler:

It. Yeah, I say let’s see if Toni has anything to add on to that from her representing her, defending her clients and these types of cases. Yes,

Toni Jackson:

I think that this case makes it really important that employers implement a rigorous training program for their managers so that they understand what this case means, what could actually become some harm. I had never thought that someone would say the job, the transfer lack prestige, and that would be significant enough to create a Title VII claim. So you’re really going to have to manage your managers to understand what that means when they’re transferring people because oftentimes in companies, a transfer is a routine way to deal with some type of conflict or issue within the organization, and now you’re going to have to think about what that really means and whether it can affect some harm, which is something I think will increase the amount of complaints. I don’t know that it’ll get to a case filed in court, but I definitely do think complaints of discrimination are going to increase because why not everyone’s going to want to test the boundaries of this. Correct.

Carolyn Wheeler:

Right. I will say that, well, I was reading through this case that somebody comes from a collective bargaining kind of background labor relations. When I saw the fact about how she had a take home car and that she didn’t have a take home car, I’m like, I don’t think the judges in those lower courts understand the importance of employees about having a take home car. There was a few facts in there I think that made the case a little bit interesting. And maybe Toni, you mentioned kind of the more nuanced situations perhaps, and I think in one of our initial planning calls for this one or both of you may have mentioned the impacts on performance management issues, and I think maybe that’s what you’re kind of alluding to and

Toni Jackson:

Where

Carolyn Wheeler:

That comes in and when those types of situations rise to the level of being an impact on these terms of conditions of employment that are actionable on our Title vii. And I know Carolyn maybe preview that a little bit too, but what are other areas that you’re thinking might be the next round of these types of cases where this new standard might apply in a different way?

Matt Greer:

Well, one of the specific things you mentioned that affected Muldrow that she found challenging in her new job was the shift rotating shifts instead of having a consistent nine to five schedule. So the fifth circuit had gone in banked in a shift assignment case where women were not allowed to take time off over the weekends and kind of reversed its 40 years of precedent on whether that could be actionable discrimination. So I definitely think employers have to consider though managers may say, well, what’s the difference? I mean, you’re still working the same number of hours, we need you night shift or the graveyard shift or whatever. But if that’s going to be a change for someone, then they might want to challenge it. I want to really inject here though that all these things can only be challenged if they’re done for a discriminatory reason.

That wasn’t really debated in, it was sort of just assuming this was happening because of her sex, because this new boss thought this job was too dangerous for a woman. And there’s kind of thin evidence that this was because of sex and also in the shift policy in Dallas, Dallas jail, there was no question this was because of sex, but that’s not usually conceded by employers that yes, we’re going to put you in that store because black and that’s where we want our black people to be. It’s like that kind of overt racial segregation in job assignment or shift assignment is not standard business practice. So first week in advising a client, I would say, I understand you don’t like what they’re doing, but why do we think it’s because you’re a woman or because you’re black or because of your age or your disability? I do think this standard’s going to apply to all the discrimination statutes, not just Title vii. So whatever the possible basis of discrimination, and by the way, it’s not just my opinion. The lower courts, many have already recognized this is going to apply in age cases and disability cases because the language of the statutes is the same about discriminating in terms and conditions of employment

Toni Jackson:

And retaliation cases. I think we can also look at it for retaliation whether there’s a protected activity other than the speaking up involved as well. I think Carolyn’s right? My main point takeaway was, yes, a better job or a better shift will now be a factor, but you still have to have the underlying discrimination. And that’s what we’re going to have to be sure to explain to folks and I’ll be counseling my clients about, right? If this is just moving one person for, no, they’re not in a protected class or it’s not a protected activity, they complained about mistreatment of someone else or themselves, then I think it’s less likely to be actionable. I could be wrong, they could have tested in the beginning I think either way, but I think that that’s less likely to prevail as something that’s kind of like what happened with Ms. Mulrow.

Matt Greer:

I think that’s right, Toni, but the tricky thing with Title VII is everybody’s in a protected class, everybody’s in some group, everybody’s got a race, gender, but showing that that is why you were picked for something, it is the causation. That’s the hard part, not just we’ve got the basis, we’ve got, oh, I hate what happened to me, but why did it happen? Is it just a legitimate business need to move people here there or change people’s shifts

Carolyn Wheeler:

And is it fair to say it? That’s usually the hardest part of those cases, right, is truly not part. That’s where this usually comes down to, right,

Matt Greer:

A hundred percent.

Carolyn Wheeler:

There was one point in Justice Kagan who wrote the majority opinion where I read it very early on in her opinion, where she pointed out the fact that the new incoming supervisor referred to Mulrow as Mrs versus Sergeant Mulrow. And I was like, oh, I read that. I was like, okay, this. That definitely resonated there. And that goes to that point I think was like that was kind the underlying kind of fact pattern behind this that kind of gave the case a interesting tone to it, I guess a better

Toni Jackson:

Word. Well, if you’ve represented police departments, I have that’s unusual for lion officers to refer to one another as Mr. Or Miss and not by their titles. That’s

Matt Greer:

Significant. That would stand out. But he also said he just thought it was a really dangerous job kind of unset for a woman because he then brings in a man to do it. And so these are kind of not just sexist but kind of old fashioned views that you hope aren’t stated overtly anymore. But of course they are. We do have direct evidence of discrimination in lots of cases we do.

Carolyn Wheeler:

So thanks Toni and Carolyn for kind of going through that Moro decision I think is really interesting. And I guess I’ll give you a chance if there’s anything else from the case that you wanted to share out either from the majority decision or from the concurrences that you wanted to point on to before we go on to talking about how this impact might impact other areas of the law as well.

Toni Jackson:

I think we talked about the regular statutes like a DA. I also want to throw out there that it’s not in Kagan’s or any of the concurrences the questions about DEI and DEI programs, but it was asked by Justice Coney Barrett and Justice Thomas during the arguments. And the question is, will there be more tax on DEI now that they have this case? I read Justice Kagan’s decision as really cabining this to Title VII and transfers. I know it’s going to grow out. I don’t know that it can quite reach company’s DEI efforts. I’m sure people will try, but there’s another statute that could be implicated and we’ve seen it being used right now in that section 1981 to attack DEI cases. And I think this case and the standard might have a little flow over into that space as well.

Matt Greer:

I agree. A number of courts have said absolutely it applies to discrimination challenges brought under section 1981. I don’t quite see the decision as cabining the rule either to Title VII or to transfers. I think the decision is about terms and conditions of employment discrimination in those things. So to me, the biggest question after this decision is what other things would be considered terms and conditions of employment? And so we know transfers are, we know probably shift assignments are from the end bank decision in the fifth circuit and others, but what other things, and Matt, you mentioned your background in collective bargaining. One of the ways I’ve thought about this as well, anything people get to bargain over must be a term of employment, but plaintiffs lawyers, people advising employees have to think about. So is every single thing that ever happens that you don’t like going to be something that would be called an actual term or condition of your employment? Or is this just a kind of transitory one-off thing that happened, you didn’t get invited to lunch with the boss? Did that happen once or does that happen every week and some favored group that you’re not in gets to have lunch with the boss week after week after week? So for it to become a kind of feature or term of your employment I think is what a lot of people aren’t going to understand

On both sides, whether you’re an employer or an employee, what would be the limits of that or how do we need to think about that?

Carolyn Wheeler:

That’s interesting. And Toni, I’m curious if you’ve thought about that from the employer perspective, but I think that does a really good question. And I know in certainly the collective bargaining world, there are mandatory subjects versus permissive subjects and each jurisdiction has different ways of handling that and kind of what’s rise to the level of being bargain able, which I was drawing as some parallels of my brain to kind of what might be actionable here. But I’m curious, Toni, do you have any thoughts on that? Do you see a line there forming and between what might rise that level and what might not? If

Toni Jackson:

You do enough Title VII work, you know what real terms and conditions are? I do think I still would chuckle at the, I didn’t get to have lunch with my boss when other people did, but if you say, I’m not invited to this training seminar when four other folks in my division were invited to go to that and I’ve missed it every year, that could be considered something that holds you back from progressing in the organization. That could be a term or condition of employment where you’re being treated discriminator. I mean, you’d have to look at those things. Discipline, of course, discipline comes in and it’s always been hard with discipline as well. To me, transferring discipline have been the two hardest parts of Title VII enforcement and discipline, like in defending and in enforcing to figure out what is actionable and what is not. You can make a better case for an equitable discipline now with this some harm standard if you consider discipline to be a term or condition of employment.

Matt Greer:

And I would just echo what Toni’s saying, and since Toni you mentioned earlier the whole realm of management of employees. So performance management is a huge, huge aspect of that definitely impacts employees being put on a performance improvement plan. Let’s say an employee is given three months to get their numbers to some level or being monitored and reporting into a supervisor on a weekly basis. I would at least argue that that’s a new term and condition of employment that if it’s done for a discriminatory reason, that individual could challenge it. I think being put on suspension, disciplinary suspension, whether paid or unpaid, could be again, if done for a discriminatory reason could be actionable. So we earlier mentioned retaliation, the standard for that, the Supreme Court clarified a few years ago for the kinds of actions that can be challenged as retaliatory, it’s different. It doesn’t even have to affect terms and conditions of employment, but it’s anything that would deter somebody from filing a complaint about discrimination.

So with this decision about some harm standard for other employment decisions, those two standards may be coming closer together. I don’t know. I think there’s going to be a lot of debate about, and a lot of courts are already saying, oh, now it’s easier to prove discrimination than it is to prove your retaliation. I’m not sure that’s right, but how courts and litigants think about both standards and both kinds of scenarios is going to cause a lot more developments in this area and change how we think about all of these decisions that employers make and how they affect people.

Carolyn Wheeler:

That’s interesting. Toni, is that impacting how you’re advising your clients or having conversations with them in terms of those two standards for retaliation versus discrimination? Is there an impact on that?

Toni Jackson:

I think there’s really more attention to making sure that there’s training and an understanding of what could or could not be considered some harm. We’re trying to quantify that term for our clients so that they can understand and we’re encouraging them to ask before they take steps to do anything so that they can kind of think out and pressure test any actions they might want to take. Now is everyone calling us? No going to be some people out there making this call and deciding things. And my advice would be to make sure that you are not doing things like while maybe not discriminatory in your brain, give off that aura like calling a sergeant in the police department. Mrs. I mean once you do that, I think both sides know that’s not something that happens in a paramilitary organization. They don’t generally call their officers Mr or Mrs. And not saying something is a man’s job versus a woman’s job or a young person’s job versus an older person. These are things you would think we’ve come to learn not to do or say. And I think we have to be more vigilant about that going forward.

Matt Greer:

Another popular perk in employment that’s been litigated a lot in various contexts is the option of telework or remote work, which we know masses of people got to do that during the pandemic and fair number of people want to have that kind of schedule or a hybrid schedule going forward. And then there’s of course people with disabilities that have claims that they need this as an accommodation. And I just think that makes a pretty nightmare situation for many employers of figuring out do they have to let everybody telework? So again, I always think this should be simple, just don’t discriminate because of race or age or gender. But I take Toni’s point that it’s kind of hard to educate people to realize maybe that’s what they’re doing when they may, they’d know if they had a policy. Only women get to teleport, but no one quite does that. So it’s just harder to know as you make what seemed to be individual decisions, whether you’re falling into some pattern of discriminating on a prohibited basis,

Toni Jackson:

And that’s the trading that needs to happen to role play in game out. Well what about this case and why is it different for this one? Then what are the unsaid stereotypes or things that you’re acting on when you make these decisions? You have to stop it. And so I think that’s really kind of what we’re trying to do with our clients is to help them focus on the training and the do’s and don’ts, the right questions to ask before they make these decisions.

Carolyn Wheeler:

Those are great points and it is kind of a proactive thing that folks can do. I guess I’m curious, have you seen some really effective trainings? There’s something about certain trainings that are good at doing this kind of work. I think we’ve all sat through some trainings where it’s like through you check the boxes, maybe it’s a very off the shelf kind of a thing, and then you don’t come out with too much. But I’m curious, especially in this area, which can be really, I think, challenging perhaps to train on. Are there any tips you have for folks for if they’re looking for good training programs out there? It’s a little bit of a tangent from our conversation, but I’m curious that that’s something that I would think that an employer or perhaps even in the employee bar, the plaintiff’s bar too, like, Hey, we wish people would know this and wish that this point would get across and here’s a good way of doing that. I’m just curious if you have any thoughts on that.

Matt Greer:

I’m going to give Toni a moment to think about that and just share kind of an off the wall point that I worked at the EEOC as an appellate lawyer for about 28 years, and I can remember an argument where I was once explaining why the tests that an employer had used had a disparate impact. It was an apprenticeship kind of program or something. And the judges said, well, what test do you recommend? And I’m like, I’m sorry, the EEOC is not really in the business of Certify. And he said, well, I don’t know how you challenge things as discriminatory if you’re not prepared to tell people what’s a good way to do this. So the EEOC provides a lot of training for employers on these kinds of compliance issues, but I never think about this because I’m representing employees. So I want to hear from Toni, what are some good trainings that are done in this area?

Toni Jackson:

Well, I’m going to put a plugin for the A Labor and employment law annual meeting and the midwinter meetings where we do have these discussions in these trainings and perhaps we’ll have a panel like this at the next meeting, not the one coming up in November, but another one because I do think we need to start talking. We’ll have a mojo panel, but I know that we’ll talk about this, but we should, and we are crafting kind of bespoke trainings for clients around the issues. They’ll tell us, we want to know about this, this, and this. And ours are rarely just where we speak to you and you kind of doze off. They’re interactive, they’re case studies or examples where you kind of test it out more because it really is nuanced. If this little fact changes, will that change your decision? And so we have to help them start thinking, rewiring their brains about how to look at these questions.

Matt Greer:

I think one, if I were designing some training, I’d take that list of terms in justice, Kavanaugh’s concurring opinion and say, so when you’re thinking about a decision, think about whether it’s going to affect people. If it affects money, then it’s a no brainer, but how about time satisfaction, scheduling, convenience, commuting timer, cost status, especially career prospects, which is sometimes difficult to evaluate another person’s ideas about their career trajectory and what they want and why This is going to be a back the interest level. I mean, how would you know? Well, presumably your employee says, no, I don’t want to do that. I’m not interested in that then. But that’s very subjective. And he’s saying these would be things that you might, professional relationships, networking opportunities effect on family obligations. So I would take those dozen words and help managers think about is anything we’re doing in the workplace with our folks impacting that way? But I’m also going to say there’s been a case on a policy that an employer had about use of pronouns and the court held that saying that your employees do not have to use the preferred pronoun of an individual whose pronoun may not accord with whatever others think it ought to be. That’s discriminatory, and that is a significant term of that individual’s employment might’ve thought of that as a kind of hostile environment issue

And it’s been litigated that way, but now it could just be a standalone by not insisting that people use the pronouns I prefer you have created a discriminatory environment for me.

Carolyn Wheeler:

So Carolyn, do you have the name for that case in case people are willing to look it up? Is that something that a decision’s been issued on it? And we can include that in the show notes if you don’t have it handy, but I was just curious if you knew

Matt Greer:

It’s in Florida of all places and it’s a school case. Yeah, it’s wood against the Florida Department of Education. A site would be awkward, but it is 2024 Westlaw 3 3 7 1 3 1 9. But basically it’s some teachers who had been allowed to use the pronouns they wanted. Then there’s a state law saying we can’t allow this anymore. And the teachers challenge the change in the policy.

Carolyn Wheeler:

I’m curious, I mean as we getting close to our end of our time here, I am curious if you are seeing impacts in other areas. I know we kind of mentioned the Americans with Disabilities Act kind of has some provisions that are similar, that this might have an impact on the Age discrimination and Employment Act. Also some of those laws in maybe individual jurisdictions as well. I don’t know. Are you seeing a trend out there in terms of how this might kind of play out in other jurisdictions or under other statutes that you’re kind of familiar with? Do you have any prognostications for how this might have a bigger impact in those areas?

Matt Greer:

All I can say is that every court of appeals who’s had any occasion to render an opinion on it has said this is the standard under the Age act, but they aren’t deciding anything yet because if it’s up on appeal on what’s the right standard, it’s going to have to go back to the lower courts to apply this some harm standard. So we’re not going to see that being played out until more cases are litigated. So it’s okay, we have a standard, but we don’t know what evidence will establish that this caused me some harm. That’s the big $90 million question I think for employees.

Toni Jackson:

And I think the bigger question is we won’t really know if it makes a difference, the change in the standard until they get through summary judgment and then you see what a jury or a judge decides. It may not make a difference at the end of the day,

Carolyn Wheeler:

But are you seeing this kind of standard being applied in whatever way ends up being applied evenly across those statutes and even maybe under some of those state laws that have similar kind of standards, you think that’s kind of a fair assumption as that will be something that will be applicable?

Matt Greer:

I think basically what the Supreme Court did is say, and what both the in bank circuits in DC and the Fifth Circuit said is we just made this up. There is no basis in the statute for making people show serious or significant or materially tangibly horrible stuff. It’s discrimination, it’s treating someone worse because of a protected characteristic. And that I believe is going to be consistently and uniformly applied. What will lead to very, very different outcomes is what kind of evidence people can actually generate about how this did treat me worse

Toni Jackson:

Affect. Yes, and whether that matters because now that we have this new standard, the question is will courts, I mean, let’s look at what the judge said. Will they just use different words to make the same finding? I don’t know.

Carolyn Wheeler:

Well, it’d be interesting to watch. Do you know of any cases that are percolating in the system right now if people want to keep an eye on this at all? Is there someplace that they might be keeping an eye on things for further updates? Do you have any insights there?

Matt Greer:

I don’t know that anyone is collecting and watching all of these other than people like us who have to present on it. I think I have to do this at the midwinter meeting in

March of next year. So I’ll surely be collecting cases, but I don’t have any real reason to be doing that except interest. I could say I will be arguing this exact issue next week in the 11th circuit in a very unusual circumstance, but I’m not going to ask everybody to watch this. I don’t know what’s going to happen. But it’s about a coach of women’s basketball and our argument is that she has disparate resources in marketing in money for her assistant coaches’, salaries, travel budget, and the shape of her locker room, all of which we’ve argued affect her employment because it makes it way harder for her to do her job. Summary judgment was granted under an older standard that’s saying this didn’t really seriously affect any, well, really saying it’s not even a term of her employment. This is just the teams conditions and program. It’s not her employment, but I’ll certainly be making a big mulrow argument about this left her much worse off than the coach of the men’s basketball team.

Toni Jackson:

Oh, I’m going to want to see this. I might have to tune in, Carol.

Carolyn Wheeler:

Yeah,

Toni Jackson:

It’s next Thursday.

Carolyn Wheeler:

Are you willing to share the case name just in case people did want to do a quick search when it comes out?

Matt Greer:

Yes. It’s Joseph against Georgia Tech. Okay,

Carolyn Wheeler:

Great. Well thanks. I think that’s interesting to hear what’s going on. That sounds like an interesting side effects there.

Toni Jackson:

I agree.

Carolyn Wheeler:

Alright, well we are getting close to the end of our time here. So I wanted to give you both an opportunity if there were any closing thoughts or anything that you wanted to share as we kind of end our conversation here,

Toni Jackson:

I want to encourage people, my focus really coming out of this case is concerns that my clients have sometimes raised about how it’s going to flow over into the DEI space. So I tend to focus a lot more on that and I want to encourage people to not close the doors before they are closed. This case is not in the DEI space. Yes, people will likely make arguments because they make arguments about everything, but this does not shut down diversity equity inclusion programs or affinity groups or the many myriad of ways that employers are giving their employees benefits for being in the workplace, which is different than moving someone because you thought they couldn’t do a man’s job. But these programs are benefits to employees, not punishments or something less than I know it’s going to be thought that way, but I would encourage people not to start running away from their programs and what they’re doing and to continue down the road of offering these benefits to their employees.

Matt Greer:

And I would note on that point that the chair and vice chair of the EEOC have strongly argued that this decision and the students for fair admissions decisions do not affect voluntary DEI programs. And from my perspective, and I could be a hundred percent wrong about this, but I think because the questions came up at oral argument, one reason Justice Kagan and the majority put in the Some harm standard is that there’s a belief that that would be very hard for a white man to show how he was harmed by the existence of affinity groups for other interest groups or identity groups in his workplace. That harm requirement is not non-existent. It is a real thing and that it might be harder for the so-called majority group in a workplace to show how they’re harmed by mentorship programs for others, sort of the point they’ve always had that, and this is an effort by employers to try to level that playing field and it would of course be very perverse, but it’s what some were saying was going to happen and they were very gleeful at this opportunity to use the decision. But I haven’t really seen courts that are buying it yet.

It’s early.

Carolyn Wheeler:

It’s interesting. I mean, yeah, you read these cases and there’s always something more going on behind the scenes, right

Toni Jackson:

From

Carolyn Wheeler:

The casual reader, that’s for sure. That’s really the value of these conversations. So I really appreciate you both joining us and sharing your wisdom and thoughts on all of this, I think is really, really helpful to kind of go through this decision as well as some of the bigger implications of it. So appreciate that. I also want to take a moment to thank our listeners too for taking the time to join us. Hope you found the conversation as interesting and informative as I did. So the A Labor and Employment Law section is very excited to launch this podcast. Please help us get out the word out, share it with your friends and your colleagues. If you listen to us on Apple Podcast or Spotify or a favorite podcast player, make sure you give us a rating and review us so we know what we’re doing well and how we can improve. You can also find more information in the latest episodes in the podcast website, which is ambar.org/lel podcast. We’ll include that link as well as a link to the Labor and employment law section in the show notes. Thanks again for joining us. Talk to you next time.

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