Richard McGee


The United States Supreme Court ruled unanimously that Title VII of the Civil Rights Act of 1964 does not require evidence of significant harm to conclude that unlawful discrimination occurred in the workplace.  Title VII addresses discrimination on the basis of race, color, religion, national origin and sex.  Remember, in most instances, Title VII exempts tribal employers from compliance.  Nevertheless, the lesson from Muldrow v. City of St. Louis is instructive for tribal employers.  

Latonya Muldrow spent nine years as a plainclothes officer with the St. Louis Police Department and when a new supervisor came on board she alleged that he transferred her to a less prestigious position because she is a woman.  Before the transfer, she worked Monday through Friday and had the use of a take-home vehicle and she lost those benefits when she was transferred to another position.  Importantly, the transfer did not generate a loss in pay or other benefits.  

Ms. Muldrow was replaced by a male officer after her new boss observed that the male officer was a better fit for the Gang Division’s very dangerous work.  Moreover, the new boss referred to Ms. Muldrow as Mrs. Muldrow instead of her rank as Sergeant.  That was enough evidence for the court to conclude that the transfer was a blatant example of sex discrimination.

In thinking about harm the court reminded us that the analysis reaches beyond pay to include “…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.”

On the other hand, employers can make the case that no harm was caused by the employment decision, and as or more importantly, the employment decision (transfer in this case) was for legitimate, non-discriminatory reasons.  Before employment decisions are made, managers should confer with their chain of command and human resources to discuss the facts that support the legitimate, non-discriminatory reason for the decision.  For example, the employee may be requesting the transfer or there may be performance issues that support the decision.  Those are likely legitimate, non-discriminatory reasons that support the employment decision and remove the employer’s legal responsibility.  Once that discussion has occurred the decision, and the reasons for the decision, should be documented.

May I assist you and your team with drafting policy, evaluating handbooks, training, assisting with hiring, firing and discipline; performing investigations of employee misconduct and representing the tribal employer if claims are presented?