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How the New Standard of Harm Under Muldrow Impacts Employer Defenses to Title VII Claims and DEI Initiatives

Lowering Bar for Plaintiffs to Establish Adverse Employment Action Element; Possible Impact on DEI Initiatives

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, July 10, 2024

Recorded event now available

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The CLE webinar will provide an in-depth look at the recent U.S. Supreme Court decision in Muldrow v. City of St. Louis (U.S. 2024) that has lowered the bar for plaintiffs to prevail in Title VII discrimination claims. The panel will discuss the impact that Muldrow will have on defending these claims and the possible effect the decision may have on corporate diversity, equity, and inclusion (DEI) initiatives. The panel will also provide best practices for counsel to assist their employer clients with assessing and mitigating vulnerabilities in their policies and processes that they may have in light of Muldrow.

Description

On Apr. 17, 2024, the U.S. Supreme Court in Muldrow v. City of St. Louis lowered the bar that plaintiffs must meet to prevail in Title VII discrimination claims which requires they be able to show that the employer took an adverse employment action against them because of the employee's protected class.

In Muldrow, the Court unanimously rejected the "materially significant disadvantage" standard used by most circuits when determining whether the level of harm suffered by the employee in a job transfer was adequate to establish an adverse employment action. Rather, the Court held that a plaintiff may proceed with a Title VII claim if they can show "some injury" resulting from the employment action. Although the case specifically addressed lateral job transfers, employment counsel and clients can expect that plaintiffs will likely argue that the new standard be applied to any allegedly discriminatory action that causes the plaintiff some harm.

In addition to causing employers concern about increased Title VII litigation, the Muldrow decision may provide an opening to challenge corporate DEI programs. Although DEI programs were not addressed in this case, opponents of DEI may attempt to use Muldrow's reasoning to challenge corporate DEI initiatives claiming that exclusions from programs intended to support underrepresented groups have a negative impact on terms and conditions of employment.

Listen as our expert panel provides an in-depth look at the Muldrow decision and its resulting impact on litigating Title VII discrimination claims and possible effect on employer DEI initiatives. The panel will also address best practices for assisting employer clients with proactively assessing policies and procedures to mitigate risk and limit vulnerability in Title VII actions.

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Outline

  1. Muldrow v. City of St. Louis (U. S. 2024)
    1. Case history
    2. Circuit split
    3. New standard to establish adverse employment action: from "significant disadvantage" to "some injury"
    4. Alternative analyses by concurring opinions
  2. Defending Title VII discrimination claims post-Muldrow
    1. Lateral job transfers
    2. Applicability to other changes to terms and conditions of employment
    3. Plaintiff's burden of proof
    4. Other employer defenses
    5. Motion practice
  3. Impact on employer policies and procedures
  4. Possible effect on DEI initiatives
    1. Impact of SFFA v. Harvard on employment
    2. Update on litigation concerning DEI initiatives
    3. Potential application of Muldrow to different types of DEI initiatives
  5. Practitioner takeaways

Benefits

The panel will review these and other important considerations:

  • What is the new standard of harm that plaintiffs must show to demonstrate an adverse employment action in Title VII discrimination claims?
  • How will the new Muldrow standard impact employer defenses?
  • What impact may this standard have on motion practice?
  • How may Muldrow affect corporate DEI initiatives?
  • What should counsel be encouraging employers to do now to mitigate risk in light of the Muldrow ruling?

Faculty

Hale, Robert
Robert M. Hale

Partner, Chair, Employment Practice
Goodwin

Mr. Hale’s practice involves representation of clients in employment litigation, including noncompetition,...  |  Read More

Turnbull, Andrew
Andrew R. Turnbull

Partner
Morrison & Foerster

Mr. Turnbull represents companies on a broad range of labor and employment litigation and counseling matters,...  |  Read More

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