The Supreme Court’s Muldrow decision has significantly broadened potential employer liability for workplace decisions, increased the volume of litigation, and increased the cost of litigation by “lower[ing] the bar Title VII plaintiffs must meet” to show an adverse action.
By Michael D. Kabat and Robbie Wright
In Muldrow v. City of St. Louis, the U.S. Supreme Court issued a seminal employment decision modifying the “adverse action” element plaintiffs must satisfy to establish a Title VII discrimination or retaliation claim. In the nine months since Muldrow, lower courts have begun applying the holding, confirming that the decision “lowered the bar Title VII plaintiffs must meet” to show they suffered an adverse action for discrimination/retaliation case purposes and identifying areas of uncertainty following the decision. This article explains the background of the Muldrow decision, evaluates how lower courts are interpreting the Supreme Court’s ruling, and provides counsel with recommendations for managing the increased exposure resulting from the decision.
Overview
Under Title VII, an employee must have experienced an “adverse employment action” to establish a discrimination claim against an employer. Pre-Muldrow, most courts required a showing of a “significant,” “ultimate” or “material” employment decision to satisfy this requirement. It typically required an impact to the employee’s pay, such as being fired or a pay cut. Supporters of the pre-Muldrow majority rule argued this standard provided a clear standard as to what constitutes actionable business decisions, protected routine personnel choices from litigation, and prevented Title VII from becoming a “civility code” for frivolous workplace matters.
Critics saw the pre-Muldrow majority rule as an employer-friendly overreach of judicial authority, arguing it went beyond Title VII’s plain language. They contended that the rule improperly focused on compensation while deleting Title VII’s “terms, conditions or privileges of employment” language from the statute. They further argued that under a plain reading of Title VII, nearly any employment decision affecting an employee’s job conditions should be actionable, including internal decisions such as job transfers or schedule changes.
The ‘Muldrow’ Holding
The Supreme Court’s Muldrow decision clarified the split by issuing a decision far closer to the minority view. The court held that it was “lower[ing] the bar Title VII plaintiffs must meet” to establish a claim and expressly rejected the majority view by stating Title VII “covers more than the economic or tangible,” such that a plaintiff need not show a “significant … serious, or substantial, or any similar adjective” employment decision to satisfy the adverse action element. Rather, a plaintiff now only needs to show “some harm” related to a term or condition of employment resulting in some “disadvantageous” change.
The court did leave some ambiguity by still requiring a plaintiff to show “some harm” related to the terms or conditions of employment. Observers at the time noted that this language could leave room for lower courts to mimic the pre-Muldrow majority rule by finding that minor workplace changes did not rise to the level of “some harm.” Nonetheless, the court minimized the potential impact of its “some harm” language by noting that the employee in Muldrow, who alleged only a gender-based transfer that did not adversely affect her title, salary, or benefits, met this burden “with room to spare.”
Lower Courts’ Reaction to ‘Muldrow’
In the nine months since the Muldrow decision, observers who had hoped the Supreme Court’s “some harm” language could result in lower courts reaching the same conclusions they would have pre-Muldrow have been disappointed.
For instance, post-Muldrow, district courts have held that the following employment decisions, which likely would not have risen to the level of an adverse action under the pre-Muldrow majority standard, now are actionable:
- Reassignment to a position with the same pay but altered responsibilities.
- Reassignment to a position with fewer advancement or overtime responsibilities.
- Permanent changes to an employee’s schedule.
Post-‘Muldrow’ Areas of Uncertainty
Entering 2025, observers continue to closely watch where courts are drawing the new line between frivolous workplace trifles versus actionable employment decisions—i.e., what satisfies the “some harm” standard. The following potentially adverse actions are now “gray areas” post-Muldrow:
- Disciplining or issuing performance improvement plans, written reprimands, or negative evaluations to employees.
- Denying accommodation requests.
- Paid suspensions.
- Demeaning language.
- Reassignment to a new workstation.
- Requiring or withholding training.
- Exclusion from meetings or work trips.
Analysis and Recommendations
Counsel and their clients should be aware that courts are now considering new factors when determining whether an employment decision causes some “some harm” to employment terms and conditions. First, in transfer situations, many courts are looking at whether the employer “forced” the employee into the new position versus whether the employee requested the change or voluntarily agreed to it. Accordingly, employers should document when an employee requests or voluntarily agrees to a job reassignment or transfer.
Second, courts are evaluating causation more closely to evaluate whether an inference of discrimination exists. For instance, whether the employer required other employees to perform the same tasks is are occurring factor courts are using to determine whether evidence of an inference of discrimination exists and whether there is any causal link that suggests the alleged adverse action was targeted against a specific employee. Thus, employers should (i) document why they are taking actions that impact an employee, such as excluding an individual employee from social events, work meetings, or work trips, or assigning an employee to perform tasks not asked of other employees; and (ii)document when they modify the responsibilities of a group of employees or change a group of employees’ schedules to show the change was not specific to a certain employee.
Finally, courts are evaluating whether an alleged adverse action is tied to the employee’s job duties. For instance, if a social event typically is not part of the employee’s job duties, an employee not receiving an invitation to the event may not rise to the level of an adverse employment action. Thus, where possible, employers should clearly delineate employees’ job duties and roles, as well as workplace versus non-workplace functions.
In sum, employers, their general counsel, and external legal teams should consider taking the following proactive steps to be prepared for how lower courts are interpreting Muldrow:
- Update policies, protocols, and job descriptions, to clearly set forth the decision-making process and otherwise clearly delineate employee job duties.
- Document internal personnel decisions and the basis for same, including job transfers, suspensions, decreases in job responsibilities, shift changes, work committee assignments/exclusions and training recommendations.
- Consider formalizing procedures for personnel-related decisions like shift changes, remote work opportunities, or committee selections to ensure that decisions are made on a non-discriminatory and non-retaliatory basis.
- Train managers and supervisors to avoid taking actions that could be perceived as discriminatory as related to all employment decisions, not just pay.
Conclusion
The Supreme Court’s Muldrow decision has significantly broadened potential employer liability for workplace decisions, increased the volume of litigation, and increased the cost of litigation by “lower[ing] the bar Title VII plaintiffs must meet” to show an adverse action. As a result, itis imperative that counsel advise their clients to be cautious, update internal policies, scrupulously document workplace decisions, and consider contacting outside employment counsel regarding workplace actions that could result in potential liability.
Michael D. Kabat is the managing partner of Kabat Chapman & Ozmer and leads the firm’s labor and employment practice. He has over 30years of experience representing employers nationwide in all phases of employment law and labor relations.
Robbie Wright is an associate in the firm’s Atlanta office and represents employers in labor and employment matters as well as complex commercial disputes in both federal and state courts.