Justices debate whether Title VII claims require more than discrimination

“The premise of your argument, I think, is that discrimination itself is not a harm," Justice Kavanaugh bluntly told St. Louis's lawyer. Also: A dodge in an ADA case.

The Supreme Court appeared unwilling on Wednesday to accept St. Louis’s argument that Title VII of the Civil Rights Act of 1964 requires plaintiffs to show that a discriminatory job transfer also caused the employee a “significant disadvantage” in order to state a claim under the civil rights law.

Of the various standards advanced by the city — including "the “significant disadvantage” language and other possibilities — for assessing this additional requirement, Justice Neil Gorsuch summed up the views expressed by a clear majority of the court when he said: “[W]hatever construct we come up with,” if the court accepted the city’s argument, “is going to weed out claims that Congress in 1964 thought profoundly important to include” in the law.

Characterizing his perceived problem with the city’s position, Gorsuch continued, “once the courts get into the business of asking whether that injury is material or a reasonable person would be offended by it, that's a whole different extratextual layer that’s going to weed out a bunch of claims based on a judge’s sensibilities about how bad is bad enough.”

This extra layer — whether the law requires it, what it would accomplish, and why it would be necessary — was the topic of Wednesday’s arguments in Muldrow v. St. Louis.

The United States, which was represented in court by Assistant to the Solicitor General Aimee Brown, weighed in in the case to side with Jatonya Muldrow in her case against the city.

In the most concise summary of the argument for Muldrow’s side, Brown explained, “I think that, 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. That is discrimination against them in the terms, conditions, and privileges of employment, and I think that that is actionable.”

Gorsuch and Justice Brett Kavanaugh sided strongly with the Democratic appointees — Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — in pressing back against Bob Loeb’s argument for the city.

Notably, there was no justice as strongly defending the city’s argument. The closest anyone came was Justice Clarence Thomas, who asked questions about whether the language of the law required this additional showing.

Justice Sam Alito, meanwhile, largely argued in favor of the city’s position as, effectively, a rule of administrative convenience for federal courts, noting that the reason lower courts had adopted a standard like the “significant disadvantage” one is that, as he put it, because “there should be some sort of threshold before [a case] gets into court.” For her part, Justice Amy Coney Barrett also appeared to be looking for some appropriate test, although she also pushed back on the breadth and potential implications of the city’s position.

Gorsuch, though, in effect countered that violating Title VII should be enough to bring a case for violating Title VII. As he said later, responding to a point raised by Loeb, “I think we’ve also kind of indicated in our cases that when you treat someone worse than another person because of race or sex, that's kind of the end of it.”

And, as Jackson discussed, many of the concerns raised by the city and Alito could be addressed in the damages phase. If the harm is little, in order words, the damages will be small or — as Brown pointed out for the Justice Department — the case will not be brought at all.

Jackson also discussed with Muldrow’s lawyer, Brian Wolfman, how some potential cases that the city points to as ones to be addressed by their test are better addressed by a determination of whether the treatment constitutes a “term, condition, or privilege” of employment, as required under the law, or whether the action at issue is something less than that.

Red office, blue office

Throughout the morning, Muldrow’s position led to hypotheticals like a boss who says — or a company that just has an unwritten policy — that women can only have red offices, and a woman assigned to a blue office would have to be moved to a red office. In that situation, the questions went, is the discrimination enough to raise a Title VII claim — or, as St. Louis argues, would the woman need to show more? If so, why? If so, how much harm do you have to show?

As to a person saying "I just prefer one [assignment] over the other,” Loeb asserted that that “cannot be the basis of a federal lawsuit,” setting off a series of key questions.

Kavanaugh told him, “The premise of your argument, I think, is that discrimination itself is not a harm.”

In an important admission, Loeb said, “I don't think it's impossible to read the statute in the very broad way they suggest.”

He went on, though, saying, “Let me explain to you a couple reasons why you should not,” talking about the history of lower courts’ interpretation of the statute to include some additional showing and general statutory interpretation principles — citing the “trifle doctrine,” the idea that “the law does not concern itself with trifles” — as reasons to read Title VII to include a requirement of a showing of more than solely discrimination.

At that point, Jackson stopped him.

It was clear as the arguments reached their end that this was not an answer that would work for a majority of the court.

Notably, however, both Thomas and Barrett posed questions about whether Muldrow’s position would mean that certain affirmative action and other diversity initiatives could lead to challenges as violations of Title VII.

By and large, though, the justices pressed back on the premise of the city’s position.

As Kavanaugh said, “[T]he 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.” Or as Sotomayor put it bluntly, “I don't understand your test is what I'm saying.”

For Kagan, who focused multiple times in the argument on the importance in civil rights law on addressing stigmatic injury, Loeb’s repeated “trifle” argument eventually led to pushback.

Although Chief Justice John Roberts expressed frustration with Muldrow’s lawyer, he also laid out, rather clearly, a similar point as Kagan regarding the problem with St. Louis’s argument.

A decision in the case is expected by the end of June.

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In ADA case, a dodge

In another civil rights case, the Supreme Court on Tuesday issued its first decision of the term, with Justice Amy Coney Barrett announcing that the decision for the court in Acheson Hotels v. Laufer was that the case is moot — as Law Dork reported was the most likely outcome after arguments in October.

The decision means there will be no decision from the court this term on whether a “tester” who doesn’t plan to go to a certain hotel can bring an Americans with Disabilities Act lawsuit against that hotel alleging that it has violated the law if it doesn’t contain required accessibility information on its website.

Noting the ongoing circuit split on the question and the fact that the court and counsel had invested time and energy on discussing the question about private enforcement of the ADA, Barrett nonetheless concluded that this was not the case to resolve it.

“Laufer’s case against Acheson is moot, and we dismiss it on that ground,” she wrote. “We emphasize, however, that we might exercise our discretion differently in a future case.”

The court then not only dismissed the appeal but also vacated the lower court’s decision by applying what is referred to a Munsingwear vacatur, based on a 1950 case, United States v. Munsingwear, Inc.

Justice Clarence Thomas concurred in the judgment of the court, but only because, as part of its judgment, the court vacated the lower court’s ruling. Thomas would have decided the circuit split issue and ruled that Laufer lacks standing to bring such ADA cases.

Justice Ketanji Brown Jackson also concurred only in judgment, but for a different reason. She has previously questioned the court’s use of Munsingwear vacatur and, on Tuesday, laid out an argument that the mootness is only the first decision. What to do with the lower court decision, she wrote, “raises a separate issue that must be addressed separately.” She went on to discuss why and how she thinks it should be addressed.

To that, Barrett responded for the court, albeit briefly: “Our Munsingwear practice is well settled,” she wrote, citing several cases. “We decline JUSTICE JACKSON’s invitation to reconsider it.”