Supreme Court defends employees from discrimination on the job

The USSC just issued a shocking sort of unanimous 9-0 decision that strongly defends workers against discrimination by employers. This blows me away. I expected workers to get the shaft in a 6-3 decision upholding of the lower courts decisions to protect employers and allow discrimination. Key points:

• A female police officer on the St. Louis police force, Sergeant Jatonya Clayborn Muldrow, was transferred from a high prestige job in intelligence with high ranking officers to a low prestige job supervising day-to-day activities of neighborhood patrol officers. Her pay and rank were unchanged. She was forced against her will to take the low prestige job because the high level officers wanted to replace her with a male officer. Her supervisor sometimes called “Mrs.” rather than the customary “Sergeant” for a male police officers. Muldrow sued for discrimination under a law called Title VII.

• Title VII makes it unlawful 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 such individual’s . . . sex.” §2000e–2(a)(1). Both parties agree that Muldrow’s transfer implicated “terms” and “conditions” of Muldrow’s employment. The applicable statutory language thus prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex.

• The lower courts found no discrimination against Muldrow, irrationally arguing that there was no “significant harm” to her because her rank and pay remained unchanged. Title VII does not mention any need for “significant harm” for discrimination liability to attach. Instead, Title VII only mentions “discrimination”, not significant harm from discrimination.

• The court held (ruled): An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.  The court reasoned that “terms [or] conditions” phrase is not used “in the narrow contractual sense”; it covers more than the “economic or tangible.” Oncale, 523 U. S., at 78; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64. Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.

My understanding is that for some years now, the courts have been reading the need for “significant harm” into Title VII law before discrimination liability can attach. The practical effect of that court-invented sleight of hand was to basically neuter the law for employers and turn it into a sword against employees. The burden of proof on employees to show “significant harm” was usually too high and thus most on the job discrimination was left unsanctioned.

Personal analysis

I absolutely did not expect the USSC to decide this way. This decision by the radical, partisan Republicans makes absolutely no sense to me. It makes perfect sense for the three Dems. This decision blows me away. Yes, I am biased but for damned good reasons. In my opinion, to understand this one needs to step back and look at the big political picture. This is not what it seems on its face.

Given my deep distrust of the six, this decision was political and driven by the political optics of the case. Apparently, the six Republican radicals believed that finding the St. Louis police did not discriminate against Muldrow would be politically damaging to Trump’s re-election and to elections of Republicans to congress. Roberts and the other five radicals are acutely of the drop in trust of the court and the six radicals being partisan Republican political operatives. Opinion polling indicated that as of July 2023, most Americans disapproved. 

Data through July 2023

Source -- Feb. 2024 data

So, what is one to think of this decision? Personally, I do not believe for one second that any of the six partisan radicals wanted to decide in favor of employees. I do believe that they felt compelled by political circumstances to side with the employee in this case. As we all know, congress can amend or even repeal laws like Title VII. A Republican congress under a Republican president could easily amend Title VII and impose a requirement that an employee has to prove significant harm at a level that is usually impossible. Or, they could amend Title VII by legalizing employer discrimination on religious grounds. All it would take is an amendment of 1-3 sentences to the existing law and this Muldrow decision would simply become irrelevant and go away. 

Project 2025 is a radical right authoritarian democracy-killing plan that, among a lot of other very bad things, intends to gut the power of anti-discrimination laws once Republican regain control of the federal government. That goal of gutting discrimination law is central and sacred to radical Christian nationalist racists and bigots. They want to hate on and openly discriminate against the LGBQT community. They are dead serious about this. Also, brass knuckles capitalist business elites are strongly on the side of wanting to unfettered freedom to harass and discriminate against employees as they wish.   

One example of the attitude of callous big business executives to treat employees like crap is discussed in this article The Nation published on Apr. 9, 2024:

The Toxic Culture at Tesla

The factory floors at America’s top seller of electric vehicles are rife with racial harassment, sexual abuse, and injuries on the job.

She [Andrea Turley, a 36-year-old self-employed hairdresser] knew what working on an assembly line would entail and hoped to stay; her grandparents had worked there for decades. “I don’t have a problem with doing hard labor,” she told me.

“The problem was the sexual harassment. It was the racism,” she said. “It’s the constant disrespect.”

On her second day of training, Turley noticed the phrase “Black bitches need to go home” written on the bathroom walls. Once she started working on the line, she heard her white male lead—the person who supervised her on the floor—use the N-word and other racial slurs like “coon,” according to a legal complaint she filed later. He also frequently used the words “bitch” and “cunt.” He “used just about every awful and offensive word I can think of,” Turley said in the filing. It wasn’t just him; other white coworkers also often used the N-word around her and her fellow Black coworkers. She frequently saw the word “bitch” written on the bathroom walls alongside the N-word and “KKK.”

Turley likes to wear layers, dressing like a “tomboy,” she said. Her lead and another coworker started making comments about her being gay, harassing her for her appearance.

That exemplifies how a significant slice of capitalist elites see employees and illegally operate despite existing laws. In my opinion, the Moldrow decision was an act of pure partisan politics by six radicals who know they are skating on thin ice at the moment. They will bide their time and wait for circumstances to be more favorable to cutting employee rights down to size. What size? So small you could drown it in the bathroom sink.

Q: Is Germaine analyzing this USSC decision too cynically, irrationally or otherwise in a flawed way(s)?