Supreme Court Leans Toward Police Officer in Job Bias Case

The Supreme Court seemed inclined on Wednesday to allow a female police officer in St. Louis to sue for employment discrimination over a forced lateral transfer to another position in the police department.

A ruling for the officer would open the courthouse doors to more employment discrimination suits, but it was not clear how many.

The justices spent only a few minutes discussing the details of the officer’s case and focused instead on what plaintiffs subject to involuntary transfers must prove when they accuse employers of violating Title VII of the Civil Rights Act of 1964, which forbids discrimination against workers in the “terms, conditions or privileges of employment” based on, among other things, sex.

Brian Wolfman, a lawyer for the officer, said it was enough to prove that the decision to transfer her had been made for a discriminatory reason, whether or not she had suffered tangible harm as a consequence. “The injury is the discrimination itself,” he said.

Robert M. Loeb, a lawyer for the city, said that was not enough. There must be, he said, “significant, material, objective harm.”

By the conclusion of the argument in the case, Muldrow v. City of St. Louis, No. 22-193, a majority of the justices appeared ready to embrace some version of the officer’s position. “When you treat someone worse than another person because of race or sex, that’s kind of the end of it,” Justice Neil M. Gorsuch said. “And there isn’t a further inquiry into how badly you treated somebody worse.”

Justice Brett M. Kavanaugh said the case would be straightforward if it involved race and suggested that the same analysis applied in sex discrimination cases.

“The idea that you’re treating people differently because of their race could not be a harm, not be discrimination — I don’t really understand that,” he said.

But Justice Samuel A. Alito Jr. said “there should be some sort of threshold” even as he acknowledged that “all disparate treatment based on race, sex, et cetera, is wrong.”

Even if a ruling in favor of the officer, Jatonya Muldrow, gave rise to more lawsuits, Justice Ketanji Brown Jackson said there was little reason to expect marginal or frivolous ones.

“To the extent that we’re worried that people who have not suffered any actual concrete harm as a result of this discrimination are bringing these lawsuits, I’m wondering whether or not that’s not taken care of in damages,” she said. “Because at the end of the day, you bring your lawsuit, and if you’ve been transferred to exactly the same position you say that to a jury and they say, ‘Fine, you might have been discriminated against but your damages are zero.’”

Ms. Muldrow worked for almost a decade in the St. Louis Police Department’s Intelligence Division, where her responsibilities included public corruption, gang violence and human trafficking. Her supervisor called her a workhorse and the “one sergeant he could count on in the division.”

In 2017, a new supervisor transferred Ms. Muldrow to another part of the department, to work as a patrol officer. He replaced her with a male officer with whom he had previously worked. Ms. Muldrow’s salary and rank remained the same, but her responsibilities did not.

In the Intelligence Division, she had worked regular hours, had weekends off, worn plain clothes and drove an unmarked car.

The new job was more routine, had irregular hours and required her to wear a uniform and to drive a marked police car. After eight months, she was transferred back to the Intelligence Division.

A federal appeals court ruled against her, saying that she had not proven that the transfer amounted to “a tangible change in working conditions that produces a material employment disadvantage.”

At Wednesday’s argument, Chief Justice John G. Roberts Jr. asked whether it would be injurious to transfer a female worker to an office painted a different color. Mr. Wolfson, the lawyer for Ms. Muldrow, said yes, if the decision had been made for a discriminatory reason.

Justice Elena Kagan said the court had long recognized “stigmatic injuries,” giving the example of water fountains segregated by race.

Some justices said transfers were little different from decisions to hire or fire. “Can you see any transfer that wouldn’t qualify as discriminatory?” Justice Sonia Sotomayor asked a lawyer for the Biden administration, Aimee W. Brown, who was arguing in support of Ms. Muldrow.

Ms. Brown replied, “By definition, if you are transferring somebody, if you’re changing their office location, if you are altering their shift or anything like that on the basis of a protected characteristic, that is inherently harmful.”