Did the Supreme Court Just Kill Our Company’s Diversity Program? 

For decades, the U.S. Supreme Court tentatively backed race-conscious admissions programs—often termed affirmative-action policies—at American colleges and universities. But in late June, just as it left for its own summer break, the Court effectively ended such practices, ruling (in a pair of linked cases) that race-conscious admissions programs are themselves discriminatory. As the Court summarized, “Eliminating racial discrimination means eliminating all of it.”

Given those cases’ prominence, employers may reasonably ask, “How does that decision affect our company’s diversity, equity and inclusion (DE&I) program?” The short answer is—it likely doesn’t. On June 29, the same day the Court issued its admissions-program ruling, Equal Employment Opportunity Commission (EEOC) chairperson Charlotte Burrows released a statement insisting that, from the EEOC’s perspective, the ruling “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background.” More to the point, Burrows stressed that employers are still allowed “to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”

Practically speaking, your DE&I policies are likely safe. Employers remain free to charge forward will such initiatives, particularly when those initiatives articulate a commitment to inclusivity and nondiscrimination.

Biden Department of Justice Argues that Lateral Transfers Should Serve as a Hook for Discrimination Claims 

While it has closed its doors for the summer, the Supreme Court has already hinted at what its next term may hold for employers—including a potential new hook for discrimination claims. Discrimination claims require an employee to identify an adverse action stemming from the alleged discrimination, like losing a job or receiving a suspension. Historically, lateral transfers have not qualified as adverse action so long as the transfer does not include slashed pay or benefits or significantly different responsibilities.

That engrained understanding may soon change. In 2017, after a shake-up at the St. Louis Police Department, Sergeant Jatonya Muldrow was transferred from the department’s intelligence division to a patrol assignment. While Sgt. Muldrow believed the transfer was based on sex discrimination and viewed her new role as less prestigious, “her pay and rank remained the same,” and the transfer “did not harm her future career prospects.” Based on that testimony, the District Court dismissed Sgt. Muldrow’s discrimination claim and the Eighth Circuit Court of Appeals affirmed, reiterating that under its existing law, a reassignment does not constitute adverse employment action “absent proof of harm resulting from that reassignment.”

When Sgt. Muldrow sought review from the Supreme Court, the Court invited input from the Department of Justice (DOJ). In response, the DOJ asked the Court to reverse the Eighth Circuit’s decision and hold that “all forced job transfers” that are grounded in discrimination are actionable. On June 30, the Court granted Sgt. Muldrow’s petition and agreed to consider whether Title VII prohibits discriminatory transfers even when a district court has not found that the transfer “caused a significant disadvantage.”

Employers should watch the case carefully. If the Supreme Court sides with Sgt. Muldrow and the Biden DOJ, employers will need to show extra vigilance in ensuring that lateral transfers are not tainted by discriminatory motives.

Landmark Gender-Dysphoria Decision Stands, Justice Alito Bristles

As employers know, the Americans with Disabilities Act (ADA) requires employers to work with employees to provide workplace accommodations for disabilities. While the ADA is broad, it includes certain carve-outs, including a provision stating that “gender identity disorders not resulting from physical impairments” are not disabilities under the ADA.

But in August 2022, in a decision called Williams v. Kincaid, the Fourth Circuit Court of Appeals held that gender dysphoria may be covered by the ADA, even if “gender identity disorders” are not. The Fourth Circuit added that gender dysphoria may be marked by feelings of “discomfort and distress” associated with an incongruence between a person’s gender identity and their gender at birth. At the time, we cautioned employers that if an employee flags an issue that sounds like it could fit that definition, the safest approach is to provide an appropriate accommodation.

The government defendant in the Williams case asked the Supreme Court to revisit the Fourth Circuit’s decision. On June 30, the Court denied that petition, allowing the case to stand—perhaps to allow time for more courts to take up the same question. In a bristly dissent, Justice Alito criticized his colleagues for declining to take up the case, saying that “there is no good reason for delay” and that the Williams case “presents a question of great national importance that calls out for prompt review.” Justice Alito’s concerns read like a cable-news hot-topic line-up: in his view, Williams could affect “participation in women’s and girls’ sports, access to single-sex restrooms and housing, [and] the use of traditional pronouns.”

While Justice Thomas joined in Justice Alito’s dissent, the other seven justices were unmoved. Consequently, Williams stands, both as governing precedent in mid-Atlantic Fourth Circuit and as guidance for employers whose employees seek accommodations for gender dysphoria.

California Supreme Court Squashes Take-Home COVID Theory

In November 2021, the Utah Supreme Court supported a theory of “take-home” liability in Larry Boynton v. Kennecott Utah Copper, LLC. The decision states that if a job-site operator exposed a worker to asbestos and that worker takes the asbestos home, that worker’s cohabitants—a wife, a child, a roommate—can sue the operator for that exposure. Both the basis for that decision and its takeaway are striking: job-site operators owe a duty of care to their workers’ cohabitants to prevent their take-home exposure to asbestos.

That case may seem narrow—if your workplace is unlikely to risk asbestos exposure, then surely that case doesn’t mean much to you. But creative plaintiffs’ attorneys didn’t take long to find an analogy with much broader application: If a construction worker’s spouse is able to sue a construction company for take-home asbestos exposure, why can’t the same spouse sue the company for take-home COVID exposure, particularly if that exposure results in prolonged hospitalization?

The plaintiff in Kuciemba v. Victory Woodworks acted on this theory. Kuciemba started work at a San Francisco construction site in May 2020. Within months, his employer broke county protocols and exposed him to COVID. He caught the virus, took it home and transmitted it to his wife who grew sick and endured a lengthy hospital stay. Kuciemba sued his employer, echoing the theory that the Utah Supreme Court adopted in the take-home asbestos cases: Kuciemba’s employer owed a duty of care to Kuciemba’s wife to prevent her take-home exposure to COVID.

But unlike the decision in the Utah Supreme Court asbestos case, the California Supreme Court rejected that take-home theory for what amounts to an intensely practical reason: “recognizing a duty of care to nonemployees in [that] context would impose an intolerable burden on employers and society.” Employers, of course, have other incentives to protect their workers’ health and safety, but, unusually, “It could get me sued in California” is not one of those reasons.

Pregnant-Workers Protections Spring into Effect

Even casual readers of this newsletter have probably caught word that the Pregnant Workers Fairness Act (PWFA), which passed late last year, extends accommodations to (you guessed it!) pregnant workers. Prior to its effective date, the PWFA provided a brief runway to allow employers to implement new policies. That date is now upon us. On June 27, 2023, the EEOC began accepting charges based on pregnancy discrimination under the PWFA. There are now several necessary actions for employers, including reviewing educational resources and hanging a new poster. Most critically, though, employers should work diligently to comply with the PWFA’s accommodation requirements.

Pregnancy accommodations are often commonsense: sitting or drinking water while working; arranging for closer parking; increasing flexibility with work hours, break times, and uniforms as well as with leave to recover from childbirth. Employers who are unsure of how to comply should seek guidance. A failure to arrange for such accommodations upon request is more than a source of bad morale—it is now a source of legal liability.