Diversity & Inclusion

The wrong way to diversify a workforce

by Lynn M. Mueller

According to the 8th Circuit, three officials of the St. Louis Metropolitan Police Department who were seeking a diverse workforce violated Title VII of the Civil Rights Act of 1964 when they rejected a white male sergeant in favor of a black female sergeant for a transfer to an equivalent position with materially different working conditions.  Discrimination underlined with red marker

Assistant academy director job opens up

When Sergeant David Bonenberger saw St. Louis Metropolitan Police Department had a job opening for assistant police academy director, he was interested. But when he inquired about the position, Lieutenant Michael Muxo told him “not to bother applying [as a white male] . . . because the job was going to a black female. . . . [I]t was out of his hands . . . and [his superior, Lieutenant] Colonel [Reggie] Harris would make the decision.” Bonenberger applied for the job anyway, “hop[ing] that maybe something would fall through with the person they had picked out for it.”

Meanwhile, the outgoing assistant academy director specifically recommended Bonenberger to Muxo, who declared “there [was] no way they were going to put a white male in that position.” When asked why, Muxo replied that Sergeant Angela Taylor was being considered because “Harris wanted a black female in that position.”

Despite Bonenberger’s interest and the outgoing assistant academy director’s endorsement of him, Muxo recommended Taylor to Harris, who then recommended her to Chief Daniel Isom. Muxo claimed he recommended Taylor for the job because “her management style [is] conducive to the vision I have for the Academy” and she is “a quick learner and can meet my expectations.” However, neither Bonenberger nor Taylor was ever interviewed for the job.

Flimsy reasons for choosing new assistant director

The day Taylor’s selection was announced, Bonenberger filed a grievance alleging he was improperly denied an interview for the assistant academy director position. A day later, Muxo contacted Bonenberger and told him that “he had no choice” and “he had to bring color down to the academy.”

A few days later, Isom denied Bonenberger’s grievance, writing that he chose Taylor for the position because she “had the most time in rank and a clean disciplinary background” and “the responsibility for the transfer of personnel rests with the Chief of Police and he/she retains the right to assign personnel as the needs of the Department dictate.”

Isom’s correspondence didn’t mention Bonenberger’s extensive supervisory and teaching experience, his large number of certifications, or his superior performance evaluations. Moreover, he failed to recognize that both candidates were promoted from police officer to sergeant on the same day, and both had a clean disciplinary record.

Jury awards Bonenberger $620,000

Bonenberger sued Muxo, Harris, and Isom (the “officials”) in their individual capacities under Title VII, alleging they based their decision not to appoint him to the assistant academy director position on his race. A jury awarded Bonenberger actual damages of $200,000 on his discrimination claim and punitive damages of $100,000 against Muxo, $300,000 against Harris, and $20,000 against Isom.

Following the trial, the officials asked the district court to overturn the jury’s verdict because Bonenberger hadn’t suffered an adverse employment action (e.g., a demotion or termination). The district court denied their request, and the officials appealed to the 8th Circuit.

Denial of a transfer may be an adverse action

To establish discrimination under Title VII, Bonenberger presented evidence at trial that the failure to transfer him into the open position constituted an adverse employment action motivated by the officials’ discriminatory bias. He further showed that the adverse employment action created a tangible change in his working conditions that produced a material employment disadvantage.

The 8th Circuit agreed, finding that denial of a sought-after transfer may constitute an adverse employment action if the transfer would result in a change in pay, rank, or material working conditions. Although Bonenberger wouldn’t have experienced a change in pay or rank if he had been selected as the new assistant academy director, the position offered materially different working conditions.

Bonenberger introduced evidence that assistant academy director was “a high-profile” job, involved significant supervisory duties, offered more “contact with command rank officers,” and allowed for regular daytime hours and holidays off. Historically, sergeants who held the position were significantly more likely to be promoted to lieutenant.

The 8th Circuit has little case law on “material working conditions” in the context of the denial of a requested transfer to rely on. As a result, it analogized this situation to cases holding that a compulsory unwanted “transfer constitutes an adverse employment action when the transfer results in a significant change in working conditions or a diminution in the transferred employee’s title, salary, or benefits.” Under that case law, significant changes in supervisory duties, prestige, and the potential for promotion can produce materially different working conditions.

Because the assistant academy director position’s supervisory duties allow for a regular work schedule and hours, greater prestige, and increased opportunities for promotion, the job offered a material change in working conditions for Bonenberger. Those materially different working conditions provided sufficient evidence to support the conclusion that he suffered an adverse employment action. Thus, the district court did not err by denying the officials’ request to overturn the jury’s verdict. Bonenberger v. St. Louis Metro. Police Dep’t, 2016 U.S. App. LEXIS 793 (8th Cir. Mo., Jan. 19, 2016).

Bottom line

Having diverse employees fosters a more innovative workforce, minimizes employee turnover rates, and helps you capture a greater share of the consumer market. However, you cannot deny an employee an opportunity that would bring a change in pay, rank, or material working conditions merely because his race (or some other protected status) wouldn’t diversify your workforce. Rather, you must assess employees or applicants based on their skills and perspectives and the actual needs of the job.

Lynn M. Mueller is an attorney with Felhaber Larson in the firm’s Minneapolis, Minnesota, office. She may be contacted at lmueller@felhaber.com.