U.S. Supreme Court to Decide Major Employment-Discrimination Issue on the Scope of Title VII

• An Orrick appellate team, in collaboration with the City of St. Louis Law Department, filed a response merits brief in a U.S. Supreme Court case that will decide whether an employment-discrimination claim about a lateral transfer or assignment can proceed to a jury without any proof of significant disadvantage or harm resulting from the employment decision.
• The Supreme Court is set to hear oral argument in the case on Dec. 6.
• The brief urges the Supreme Court to affirm the Eighth Circuit’s ruling that a St. Louis city police sergeant failed to make out a Title VII claim related to her lateral reassignment, where the evidence showed the claim was premised on “mere [personal] preference” for the prior assignment. 
• The brief explains that the text of Title VII, and prior Supreme Court precedent construing Title VII, both clearly require employees to demonstrate they experienced a significant disadvantage in the form of objectively meaningful harm. A contrary rule—under which any change in employment conditions alleged to have been improperly motivated would be automatically actionable—would vastly expand the scope of Title VII, inviting lawsuits over employment actions that are trivial, neutral, or even beneficial to employees and forcing judges to act as “super-personnel” departments overseeing countless employment decisions.
• The stakes are particularly high for police departments, which must routinely reallocate staff to respond to evolving crime patterns, severe personnel shortages, and other needs of the community and department. Authorizing lawsuits based on any such change, even if objectively neutral or beneficial, “threatens to seriously hamstring the ability of state and local governments to function effectively,” the brief emphasizes.

The Orrick team is led by partner Bob Loeb and includes senior counsel Tom Bondy and associates Robbie Manhas, James Flynn, and Zachary Hennessee. Lead counsel for the City of St. Louis is Sheena Hamilton, City Counselor.