‘I have no idea what this means’: Alito slams Kagan’s ‘unhelpful opinion’ siding with cop who was transferred because she’s a woman

A unanimous Supreme Court ruled in favor of a female Missouri police sergeant who was transferred from her position because her supervisor preferred a man for the role. The justices agreed that Title VII of the Civil Rights Act of 1964 did not require this particular victim of discriminatory transfer to plead more harm than she already pleaded — but disagreed as to what the requirements should be in future cases.

Sgt. Jatonya Muldrow sued her employer, the St. Louis Police Department, for sex discrimination after she was involuntarily transferred from a plainclothes assignment in the Intelligence Division to a uniformed patrol position because her supervisor wanted to hire a man for her job. Muldrow went from working public corruption and human trafficking cases to working in a marked police vehicle and handling administrative oversight of everyday arrests. She earned the same salary, but was no longer eligible for certain job perks like interacting with the FBI and getting certain overtime pay. The new assignment also meant that Muldrow changed from a regular Monday through Friday work schedule to a rotating schedule.

Under Title VII, it is illegal for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,” because of protected characteristics such as race, color, religion, sex, or national origin. However, Muldrow lost at the summary judgment phase at both the district court and the U.S. Court of Appeals for the Eighth Circuit.

The justices unanimously vacated the Eight Circuit’s ruling, though the corresponding opinions were somewhat fractured.

Justice Elena Kagan penned the majority opinion, which was joined by Chief Justice John Roberts, and Justices Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson. Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh each wrote their own concurrences disagreeing with some aspect of the majority’s reasoning.

Kagan said that under the law, Muldrow would need to show that her transfer brought about a “disadvantageous” change in her employment, but that she would not need to show that the harm she suffered was “significant,” “serious,” or “substantial.”

“‘Discriminate against’ means treat worse, here based on sex,” Kagan explained. “But neither that phrase nor any other says anything about how much worse.”

The justice recounted how Muldrow’s transfer affected her and concluded that Muldrow clearly met any pleading requirements:

She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car.

Assuming Muldrow can prove what she alleged, Kagan said, “she was left worse off several times over.”

Thomas’ brief concurrence was joined by Alito. In it, Thomas agreed with the Court’s decision, but said he was “not convinced” that it accurately characterized the Eighth Circuit’s decision to require a “significant” injury.

Though Thomas concurred in the decision, he appeared to have a very different take on Muldrow’s allegations. Thomas pointed out that the Eighth Circuit found that, “Muldrow’s testimony certainly did not establish” that she was harmed by reassignment because her pay and rank stayed the same, her future employment prospects were not harmed, and she had only a “lone theory of harm” based on a “mere preference for one position over the other.”

Alito also authored his own short concurrence in which he slammed the majority for issuing an “unhelpful opinion.”

Alito said that although “For decades, dozens of lower court judges, with a wealth of experience handling Title VII cases, have held that not every unwanted employment experience affects an employee’s ‘terms’ or ‘conditions’ of employment,” that the majority has now created a rule that the event “need not be ‘significant’ or ‘substantial.'”

“I have no idea what this means,” Alito wrote curtly, “and I can just imagine how this guidance will be greeted by lower court judges.”

“What would we think if a friend said, ‘I was harmed because the supermarket had run out of my favorite brand of peanut butter,’ or, ‘I was injured because I ran into three rather than the usual two red lights on the way home from work’?” Alito asked, noting that he sees “little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like.”

“The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years,” foretold Alito.

Kavanaugh also authored a short concurrence in which he said it was the D.C. Circuit — the court on which he once served as a judge — that got the issue of discriminatory transfers correct. Kavanaugh said that even when a transfer does not change the terms, conditions, or privileges of employment, it violates Title VII when it is done for unlawfully discriminatory purposes.

Kavanaugh said he disagreed with the Court’s “new some-harm requirement,” and said that Title VII requires no separate showing of harm beyond the discrimination itself.

Kavanaugh elaborated that, “anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some additional harm — whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like,” and said that even though he disagrees with the Court’s underlying logic, he expects that his approach and the majority’s approach will “land in the same place and lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100.”

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