From left: Gavriela M. Bogin-Farber and Anna G. Bottrell
This article was originally prepared for the American Bar Association 18th Annual Labor and Employment Law Conference.
1. Introduction
The Supreme Court’s decision in
Muldrow v. City of St. Louis clarified the adverse action requirement for Title VII discrimination cases, holding that Title VII does not require an adverse employment action to meet any heightened standard of “materiality” or “significance” in order to form the basis of a discrimination claim. 144 S. Ct. 967 (2024). While lower court jurisprudence previously had often imposed heightened burdens, in
Muldrow, the Supreme Court focused on the plain language of Title VII to eliminate such requirements. To understand the new “simple injury standard,”
id. at 975 n.2, and what it will mean for future discrimination cases, we will first discuss the court’s decision in
Muldrow and then analyze how the standard has since been applied and what this may tell us about its future application.
2. The Muldrow Decision
Sgt. Jatonya Muldrow was a woman police officer who was involuntarily transferred to a lateral position with the same pay and benefits, allegedly due to gender discrimination.
Muldrow, 144 S. Ct. at 972. Sgt. Muldrow was moved from a job in the field to an administrative job with fewer supervisory duties and networking opportunities, and no unmarked take-home vehicle.
Id. at 972-73. Muldrow filed suit under Title VII, claiming that by transferring her involuntarily, the city had discriminated against her based on sex with respect to the terms or conditions of her employment.
Id. at 972 (citing 42 U.S.C. § 2000e–2(a)(1)). The District Court dismissed her claim at summary judgment, relying on the Eighth Circuit’s then-requirement that an adverse employment action involve a “significant” change in working conditions producing “material employment disadvantage.”
Id. at 973. Sgt. Muldrow, the District Court held, could not meet that heightened injury standard because she was subjected to only “minor alterations of employment, rather than material harms”: she experienced no change in salary or rank, her loss of networking opportunities was immaterial because she had not provided evidence that it had harmed her career prospects, and she had not suffered a significant alteration to her work responsibilities given her continued supervisory role.
Id. The Eighth Circuit affirmed, agreeing that Sgt. Muldrow had suffered no material employment disadvantage.
Id.
The Supreme Court vacated and remanded, holding that there is no “significant” or “materially adverse” requirement imposed by the text of § 2000e–2(a)(1), and that thus there is no evidence that Congress intended to require this high bar to prevail in a Title VII suit.
Id. at 974. Post-
Muldrow, a plaintiff need only establish a “‘disadvantageous’ change in an employment term or condition” to prove an adverse action.
Id. at 974.
See also id. at 972 (“employee must show some harm … to prevail”).
The
Muldrow court made clear that its adverse action standard does not apply to Title VII retaliation claims and leaves untouched the
Burlington Northern & Santa Fe Ry. Co. v. White standard, which held that such a claim requires a “materially adverse” action. 548 U.S. 53 (2006). In
Muldrow, the court explained that the
Burlington Northern standard was adopted for reasons “peculiar to the retaliation context” in that it was meant to capture only those employer actions serious enough to dissuade a reasonable worker from making or supporting a discrimination claim.
Muldrow, 144 S. Ct. at 976. Post-
Muldrow cases have taken this to heart.
See, e.g., Hamilton v. Norristown State Hosp., No. CV 23-4068, 2024 WL 3623521 (E.D. Pa. Aug. 1, 2024) (noting that
Muldrow did not liberalize the standard for Title VII retaliation plaintiffs).
1 In the wake of
Muldrow, plaintiffs have a greater likelihood of surviving dispositive motions on discrimination claims where the basis advanced for dismissal is a lack of “materiality” or “significance” of the adverse action. However, it remains to be seen how far litigants and courts will extend the
Muldrow standard. In this article, we explore recent cases to gain insight into how courts are interpreting the U.S. Supreme Court’s decision in
Muldrow with respect to (1) adverse action; and (2) an employment term or condition.
3. The Elements of Muldrow's Simple Injury Standard
A. What is a disadvantageous change? Is it a subjective or objective test?
Under
Muldrow, an adverse action must be “disadvantageous,” which the court defined vaguely, relying on the
Bostock decision that explained that the statutory language “‘discriminate against’ … refer[s] to ‘differences in treatment that injure’ employees.”
Muldrow, 144 S. Ct. at 974 (quoting
Bostock v. Clayton County, 590 U.S. 644, 681 (2020)). Put another way, Title VII prohibits “practices that ‘treat a person worse’ because of sex or other protected trait.”
Id. at 947 (quoting
Bostock at 658). The court went on to list several types of job transfers that had been found, under the prior heightened standard, not to meet the adverse action requirement but that would now be considered disadvantageous under
Muldrow’s newly articulated “simple injury” standard, including a job site that requires work in a wind tunnel, a position doing only nighttime work, and a role supervising fewer employees. 144 S. Ct. at 975.
The
Muldrow court did not specify whether the “disadvantageous” nature of an employment action should be determined subjectively — from the perspective of the specific plaintiff — or objectively — from the perspective of a reasonable employee in the plaintiff’s shoes. The court raised an interesting point, in dicta, that “[m]any forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.)”
Id. at 974-75. In other words, a transfer is not “forced” or “involuntary” unless the employee believes that it would be a disadvantageous change for themself. This at least suggests that the court approves of some inherent level of subjectivity when determining whether an action is adverse under Title VII.
The objective versus subjective nature of an adverse action’s disadvantageousness has been explored by lower courts since
Muldrow, and we expect that exploration to continue. For example, the Sixth Circuit read
Muldrow to say that all involuntary transfers are adverse actions and relied on this bright-line rule to reject a defense argument to the contrary.
Milczak v. Gen. Motors, LLC, 102 F.4th 772 (6th Cir. 2024),
reh’g denied sub nom., No. 23-1462 (6th Cir. June 17, 2024). The
Milczak court quoted
Muldrow’s description of adverse actions as those that make an employee “worse off” and appeared to treat this as a subjective test. That is, while some employees would not enjoy working alone or performing tasks that do not require skilled labor, others would rejoice at the opportunity.
As another example, the Southern District of New York seemed to use at least a partly subjective test when applying
Muldrow.
Anderson v. Amazon.com, Inc., No. 23-CV-8347, 2024 WL 2801986 (S.D.N.Y. May 31, 2024) (applying
Muldrow to 42 U.S.C. § 1981 claims). Specifically, the court found that a performance improvement plan (“PIP”) and job transfer qualified as adverse actions because they affected the employee’s “enjoyment of” her “benefits, privileges, terms, [or] conditions” of employment.
Id. at *11 (quoting
Littlejohn v. New York, 795 F.3d 297, 311-12 (2d Cir. 2015). By referencing the employee’s “enjoyment,” the court engaged in an inherently subjective analysis because it relied on whether this individual employee was satisfied with the workplace changes.
Courts in other circuits, however, have found that an employee’s subjective dissatisfaction is not enough to make an employment action disadvantageous or adverse. The District of Kansas wrote, “[n]ot everything that makes an employee unhappy is an actionable adverse action.”
McCray v. McDonough, No. 22-2154-DDC, 2024 WL 3950764 (D. Kan. Aug. 27, 2024) (quoting
Braxton v. Nortek Air Sols., LLC, 769 F. App’x 600 (10th Cir. 2019)). The
McCray court engaged in an in-depth discussion of
Muldrow, finding that although
Muldrow removed the term “significant” from the adverse action test, an adverse action still requires “some disadvantageous change” or “some harm,” and “a mere inconvenience or an alteration of job responsibilities does not qualify.”
McCray, 2024 WL 3950764, at *11 (quoting
Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202 (10th Cir. 2022)). The
McCray court ultimately determined that a failure to adequately train an employee did not meet the
Muldrow standard because,
inter alia, the employee was not able to show that the action caused him harm.
Id.
Similarly, the Eastern District of New York, in dicta, advocated that the
Muldrow standard includes an objective component for an adverse action and that the perceived harm or injury must be “‘more than trifling,’ even if it doesn’t rise to the level of ‘significant’ or ‘material.’”
Bonaffini v. City Univ. of New York, 2024 WL 4293118, at *5 (E.D.N.Y. Sept. 25, 2024) (citing
Muldrow, 144 S. Ct. at 977 (Thomas, J., concurring)). That court analyzed pre-
Muldrow cases, noting that they all:
had an objective component that would cause a reasonable person to consider them meaningful detrimental changes (“meaningful” might actually be a better word than “material” or “significant”), and that is why the Supreme Court chafed against the misuse of the term “significant.”
Id. at *6. The
Bonaffini court went further, arguing that this aspect of the pre-
Muldrow standard survives even after
Muldrow.
Id. at *7.
Bringing in the familiar “reasonable person” standard may indicate that some courts will develop, post-
Muldrow, a combined objective and subjective standard, similar to that applied in the hostile work environment context.
See, e.g., O’Rourke v. Providence, 235 F.3d 713, 728 (1st Cir. 2001) (harassing conduct must be “both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so”) (citing,
inter alia,
Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-23 (1993)).
Certain courts have applied an objective test to find, post-
Muldrow, that even involuntary transfers are not necessarily adverse actions. By way of example, the Seventh Circuit found that an employee’s transfer from the processing hub to the local office was not an adverse action because there was no evidence that it left him “worse off.”
Phillips v. Baxter, No. 23-1740, 2024 WL 1795859, at *3 (7th Cir. Apr. 25, 2024). Because the transfer “did not change his position, job duties, salary, or benefits[;] … the new office was even in the same building”; and the plaintiff’s other concerns “were mostly temporary inconveniences[,]” the court found no adverse action.
Id. at *3. The
Phillips court assessed disadvantage by looking at the objective job changes and not the employee’s subjective opinion of them.
As a more extreme example, the Eastern District of New York found that office or desk relocation, disciplinary reviews, excessive scrutiny, denial of overtime, threats to convert an employee to part-time status, and requiring documentation for medical leave requests were not adverse actions either independently or when viewed together.
McLoughlin v. Village of Southampton, No. CV 23-6586, 2024 WL 4189224 (E.D.N.Y. Sept. 13, 2024). Curiously, the court based its holding on pre-
Muldrow cases, relying on the fact that none of the listed actions were considered adverse in those cases.
Id. In a self-contradictory manner, the
McLoughlin court defined an adverse action as “a materially adverse change in the terms and conditions of employment” (quoting
Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004), a pre-
Muldrow case), while also mentioning that
Muldrow held that an injury need not be “significant” or “substantial” to meet the requisite threshold.
Id. As this decision circumvents
Muldrow by maintaining the pre-
Muldrow heightened pleading standard, it is likely to be overruled.
Overall,
Muldrow’s standard for a disadvantageous change appears open-ended; however, clearly some cases are taking into account the subjective opinions of the plaintiff. It remains to be seen how each circuit develops this analysis going forward. The Sixth Circuit’s holding in
Milczak indicates that it may interpret
Muldrow more subjectively and will include every involuntary transfer, while the Seventh Circuit in
Phillips sets a more objective standard looking at the precise changes occasioned by the transfer to determine if they could truly be seen as disadvantageous. We are watching for the development of a circuit split on this issue, with some courts attempting to maintain higher, objective barriers to pursuing discrimination claims similar to their standards of significance and materiality prior to
Muldrow.
B. What is a term or condition of employment?
Muldrow broadened the meaning of the phrase “terms and conditions” of employment in Title VII, but its exact parameters remain vague. Section 703 of Title VII states:
It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….
42 U.S.C. § 2000e-2(a). The widely cited
Rogers v. E.E.O.C. case defines “the phrase ‘terms, conditions, or privileges of employment’ in Section 703 [as] an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.” 454 F.2d 234, 238 (5th Cir. 1971). Because the term is undefined in the statute, courts interpret it with varying levels of breadth.
The Eighth Circuit’s
Muldrow opinion stated:
“[A] transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” A transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action, “[o]therwise every trivial personnel action that an irritable … employee did not like would form the basis of a discrimination suit.”
Muldrow v. St. Louis, 30 F.4th 680 (8th Cir. 2022),
cert. granted in part, 143 S. Ct. 2686 (2023), and
vacated and remanded, 144 S. Ct. 967 (2024) (quoting
Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir. 2005)). The Supreme Court’s
Muldrow decision clarified that the phrase “terms, conditions, or privileges of employment” in Title VII “is not used in the narrow contractual sense; it covers more than the economic or tangible.”
Muldrow, 144 S. Ct. at 974 (citing
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998), and
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). The Supreme Court found that it did not matter if Sgt. Muldrow’s pay and rank remained the same, nor that she could still advance in her employment, because the transfer still worsened her terms and conditions of employment.
Id. at 359.
Muldrow thus made explicit that terms and conditions of employment are not limited to pay, benefits, or some narrow subset of major workplace changes.
The
Muldrow court provided some examples of what qualifies as a term or condition of employment that can give rise to an adverse action, finding the following to constitute adverse actions:
She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car.
144 S. Ct. at 977. The opinion also lists a transfer to a new worksite in a wind tunnel, requiring overnight work, and a reduction in supervisory duties as changes that would constitute adverse actions.
Id. at 355-56 (citing
Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999),
Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 635 (10th Cir. 2012), and
Cole v. Wake Cnty. Bd. of Educ., 834 F. App’x 820, 821 (4th Cir. 2021) (
per curiam), respectively). These examples show that changes in an employee’s role that do not concern pay, benefits, or other concrete working conditions important enough to be listed in an employee’s contract can still affect terms or conditions of employment after
Muldrow.
Several post-
Muldrow decisions illustrate how broadly courts can construe terms and conditions of employment. One District Court found that failing to respond to an employee’s emails in a timely manner, requiring work on holidays, requiring training that was not required of others, giving an unfavorable performance rating, and changing a work schedule without notice each qualified as a “disadvantageous” change.
Mitchell v. Garland, No. CV 23-2412, 2024 WL 3251217 (D.D.C. July 1, 2024). Similarly, the D.C. Circuit Court held that a forced transfer to a position where the employee is not given any “meaningful work” to do is a harm within the scope of
Muldrow’s simple injury standard.
Van Horn v. Del Toro, No. 23-5169, 2024 WL 3083365 (D.C. Cir. June 21, 2024). Another District Court denied summary judgment where the defendants adopted and enforced a state policy that banned public school employees from providing their preferred pronouns if they did not match their biological sex, recognizing that preferred pronoun usage can be a term or condition of employment.
Wood v. Florida Dept. of Educ., No. 4:23CV526-MW/MAF, 2024 WL 1536749 (N.D. Fla. July 10, 2024). The Eighth Circuit found that a requirement for employees to wear badges signifying their COVID-19 vaccination status could be a term or condition of employment, denying the employer’s motion for summary judgment.
Cole v. Grp. Health Plan, Inc., 105 F.4th 1110 (8th Cir. 2024).
These decisions illustrate the extent to which
Muldrow broadened the concept of “terms and conditions.” However, although
Muldrow said that terms and conditions go beyond economic and tangible benefits, the opinion does not create a test or list. Therefore, it remains to be seen how courts will define employment terms and conditions in future cases.
4. Applying Muldrow's Standard
Although
Muldrow’s standard contains the above two elements — disadvantageous and impacting a term or condition of employment — the decision itself does not discuss each element separately, nor do most courts citing
Muldrow. This is likely because a failure to satisfy one element can be rephrased as a failure to satisfy the other. That is, if a change is too small to be disadvantageous, then the workplace condition also may be too insignificant to qualify as a term or condition of employment. For that reason, these two elements should be analyzed holistically, as most cases citing
Muldrow do, by looking at whether the alleged adverse action constitutes a “disadvantageous change to a term or condition of employment” in light of all facts alleged and that circuit’s precedent.
As an example, the Sixth Circuit’s
Milczak decision found an involuntary transfer to satisfy the
Muldrow standard.
Milczak, 102 F.4th 772 (applying
Muldrow to the Age Discrimination in Employment Act). The court noted that the employee’s new position required evening work, involved less opportunity for overtime, failed to use his skills, and forced him to work by himself.
Id. at 787. The court applied
Muldrow’s test in a holistic manner and found that the lack of opportunity plainly impacted compensation, and thus the employee’s terms and conditions of employment, without explaining how it reached that result (beyond specifying the effect of reduced overtime on compensation).
Id. The
Milczak decision provides an example of how broadly courts may apply the
Muldrow standard, with or without explicit reference to its two individual elements.
Anderson v. Amazon provides another example of a court sweepingly finding that facts fulfill the
Muldrow standard without discussing the elements individually. 2024 WL 2801986. In
Anderson, the employee received a PIP and a transfer to a diminished role. The court held:
These actions adversely affected Anderson’s benefits, privileges, terms, or conditions of employment by saddling her with more and worse tasks, tarnishing her permanent record, dampening her prospects of a promotion or raise, temporarily preventing her from transferring, excluding her from certain meetings and projects, and so on.
Id. at *11. The court found, without discussing
Muldrow’s individual elements, that these changes would have been considered immaterial prior to
Muldrow, but after
Muldrow, they are enough to state a claim, as they alter the employee’s “enjoyment of” her employment.
5. A circuit split for specific fact patterns
Cases since
Muldrow have not agreed upon a universal rule of what actions qualify as adverse. Circuit courts have shown disagreement in two key areas so far: informal discipline and lack of training.
First, the courts have been split regarding whether informal discipline can constitute an adverse action. In
Anderson, issuance of a PIP (along with other facts pleaded) was an adverse action. 2024 WL 2801986. Likewise, in
Mitchell v. Garland, an unfavorable performance rating was found to have made an employee worse off and to be an adverse action when combined with other disadvantageous changes. 2024 WL 3251217.
By contrast, several courts have found informal discipline insufficient to satisfy the
Muldrow standard.
See, e.g., Batchelor v. City of Wilson, No. 5:23-CV-623-D, 2024 WL 4044339 (E.D.N.C. Sept. 4, 2024) (an informal disciplinary conversation or “expression of concern” from a supervisor does not meet the threshold of harm to a term or condition of employment);
McLoughlin, 2024 WL 4189224 (unfair disciplinary reviews and excessive scrutiny do not constitute adverse actions);
Rios v. Centerra Grp. LLC, 106 F.4th 101, 112-13 (1st Cir. 2024) (“a mere admonition by a supervisor without any formal consequences is not an adverse employment action because it does not represent any disadvantageous change in the terms or conditions of the plaintiff’s employment”; applying
Muldrow to claims under the Americans with Disabilities Act); and
McNeal v. Blue Ash, Ohio, No. 23-3180, 2024 WL 4262532 (6th Cir. Sept. 23, 2024) (plaintiff’s informal discipline, including a “documented counseling,” an “oral reprimand” and a “written reprimand,” was not an adverse action).
Second, the courts are divided on whether lack of training constitutes adverse action. Contrast
Milczak, 102 F.4th 772 (lack of adequate training was a disadvantageous change), with
Smith v. McDonough, No. CV 20-1321, 2024 WL 2804428 (D.N.M. May 31, 2024) (denial of funding to attend a training not an adverse action because plaintiff could not show resulting harm), and
McCray, 2024 WL 3950764 (failure to train the plaintiff not an adverse action because plaintiff could not show resulting harm, that it was more than a mere inconvenience, or that it prevented him from completing his required tasks). We expect additional divided interpretations in varying fact patterns as more decisions are issued post-
Muldrow.
6. Conclusion
Muldrow represents a powerful tool for plaintiffs litigating discrimination claims under, at a minimum, Title VII, Section 1981, the Age Discrimination in Employment Act and the Americans with Disabilities Act. From an employer perspective, it increases the risk of liability and implicates the need for greater training of managers to ensure they are aware of the impact their actions may have under federal discrimination laws. At present, the scope of
Muldrow is currently being developed by decisions across the country.
Muldrow’s precise scope and reach are not yet known.
* Special thanks to Carrie H. Grundmann of Spilman Thomas & Battle PLLC for her insightful feedback and revisions.
Gavi M. Bogin-Farber is a partner at Segal Roitman LLP in Boston, where she represents individuals in all aspects of employment advice, negotiations and litigation,
including discrimination, wage-and-hour disputes, retaliation and wrongful termination. Bogin-Farber has litigated cases before the Massachusetts Commission Against Discrimination and in state and federal court. She also advises professionals and executives regarding separation agreements, employment agreements and ongoing workplace issues. Bogin-Farber received the Top Women of Law Award from Massachusetts Lawyers Weekly in November 2023, was named a “Rising Star” by Massachusetts “Super Lawyers” every year from 2016 to 2022, and has been
included on the Best Lawyers “Ones to Watch” list. She also served two terms as president (and previously, two terms as vice president) of the Massachusetts
Employment Lawyers Association. Bogin-Farber is a graduate of Johns Hopkins University and Northeastern University School of Law.
Anna G. Bottrell is an associate attorney at Segal Roitman whose focus is on employee benefits, but she also practices labor and employment law. Prior to joining Segal Roitman, Bottrell was a fellow at McKanna Bishop Joffe LLP in Portland, Oregon, where she practiced public- and private-sector labor law. While attending Boston University School of Law, Bottrell participated in BU’s Consumer Debt Practicum, interned at the Department of Labor’s National Office in the Occupational Safety and Health Division, and interned at the Department of Labor’s Boston Regional Office. In addition, Bottrell served as a representative of the BU Graduate Workers Union. 1. Other than retaliation,
Muldrow’s test does not exempt any category of Title VII claim. Relatedly, our research only identified one case that has limited
Muldrow to the involuntary transfer context.
See Preciado v. Recon Sec. Corp., No. EP-23-CV-00052-RFC, 2024 WL 3512081 (W.D. Tex. July 23, 2024). Moreover, the
Muldrow court did not state expressly whether
Muldrow’s rationale would apply beyond the Title VII discrimination context to claims under the Age Discrimination in Employment Act or Americans with Disabilities Act.