The Impact of Muldrow v. St. Louis on Adverse Actions Under Federal Discrimination Laws

As we approach the one-year anniversary of the United States Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346, 144 S. Ct. 967 (2024), this article explores the impact of Muldrow in federal discrimination actions.

The Facts of Muldrow

Officer Jaytonya Clayborn Muldrow spent nine years with the Intelligence Division of the St. Louis Police Department. During her tenure with the Intelligence Division, she served as Task Force Officer with the FBI, worked a regular Monday-Friday workweek, and was assigned a take-home vehicle. Muldrow’s commanding officer described her as “a workhorse” and as the “one sergeant he could count on in the division.” Despite these accolades, shortly after a new commander took over the Intelligence Division, he began referring to Officer Muldrow as “Mrs.,” argued that a male officer would be a better fit for this “very dangerous work,” and transferred Officer Muldrow to a uniformed patrol unit, albeit at the same rank and pay. Officer Muldrow filed suit, claiming the transfer constituted an adverse action in violation of Title VII (gender).

The City of St. Louis argued that the transfer was not adverse because she suffered no change in rank or pay. The District Court agreed with the City, granting summary judgment to the employer. The Eighth Circuit affirmed, ruling that Officer Muldrow needed to prove a “materially significant disadvantage.” Justice Kagan, writing for a unanimous Court, reversed the Eighth Circuit, holding that Title VII only requires a finding of “some” harm; it need not be significant, serious, substantial, or any other word that would imply a heightened standard.

The Standard Post-Muldrow

Muldrow undoubtedly altered how courts will articulate the standard for assessing adverse action and disparate treatment claims under federal discrimination statutes. No longer will a plaintiff in such claims be required to prove a “significant” change in working conditions producing a “material employment disadvantage.” Instead, as Justice Kagan wrote, a plaintiff need only show “some” harm. By shifting the focus away from the severity of the harm, Muldrow effectively requires courts and litigants to focus their attention on the reasons for the action, asking whether it was because of the plaintiff’s membership in a protected class. Since Muldrow was decided in April 2024, courts across the country have issued decisions under this new standard in a variety of contexts, at least some of which may not have been seen as sufficiently adverse pre-Muldrow. For example, in addition to Muldrow which dealt with a discriminatory transfer, we have seen some courts rule that suspensions with pay, performance improvement plans, transfer denials, and mandated training not required of others may all constitute adverse actions. Blick v. Ann Arbor Public School District, 105 F.4th 868 (6th Cir. 2024); Russo v. Bryn Mawr Trust Co., 2024 WL 3738643 (3rd. Cir. 2024); Anderson v. Amazon Music, Inc., 2024 WL 2801986 (S.D.N.Y. May 31, 2024); Tribue v. Maryland, 2024 WL 4202444 (D. Md., Sept. 13, 2024); Mitchell v. Garland, 2024 WL 3251217 (D.D.C., July 1, 2024). The list of potentially adverse actions is likely to grow as courts face claims post-Muldrow.

Application of Muldrow Beyond Disparate Treatment Under Title VII

Since Muldrow was decided in April 2024, we have already seen numerous cases seeking to extend Muldrow’s application. Although Muldrow arose under Title VII, courts around the country quickly extended Muldrow to adverse actions under the Americans with Disabilities Act, Age Discrimination in Employment Act,  and 42 U.S.C. §1981. Rios v. Centerra Grp. LLC, 106 F.4th 101 (1st Cir. 2024); Versaggi v. KLS Martin, L.P., No. 21-20547, 2024 WL 2290653 (5th Cir. May 21, 2024); Milczak v. General Motors, 102 F.4d 772 (6th Cir. 2024); Anderson v. Amazon.com, Inc., No. 23-CV-8347, 2024 WL 2801986 (S.D.N.Y. May 31, 2024).

We have also seen efforts to extend Muldrow to other types of claims, including hostile work environment, construction discharge, and retaliation. In McNeal v. City of Blue Ash, Ohio, 117 F. 4th 887 (6^th Cir., Sept. 23, 2024), the Sixth Circuit noted in the context of a hostile work environment claim that

an adverse employment action can affect employment terms or conditions on two registers. By definition, an adverse action can cause a change in the terms or conditions of employment. But an adverse action deployed strategically as harassment can also add to a climate of hostility that represents a different change in the terms or conditions of the job. To use the Supreme Court’s words, a discrete discriminatory act may have “occurred” on one day and thus be actionable, but it also may be part of a separate harm that “occurs over a series of days or perhaps years.”

From the perspective of a hostile work environment claim, the McNeal decision signals that courts are likely to treat actions previously not deemed to be adverse as now contributing to the hostile environment.

Plaintiffs in many cases have argued that Muldrow effectively lowers the standard of harm for constructive discharge claims, but most courts have rejected this argument. See, e.g., Martin v. Stateside Assoc., Inc., No. 1:23-cv-1076, 2025 WL 209816 (E.D.Va. Jan. 15, 2025). Similarly, while many courts were quick to extend Muldrow to disparate treatment claims outside the Title VII context, most courts have been equally quick to decline to extend Muldrow to retaliation claims. See, e.g., West v. Butler Cnty. Bd. of Educ., No. 23-10186, 2024 WL 2697987 (11th Cir. May 24, 2024). For example, the Southern District of New York said that “Muldrow did not alter the existing understanding that Title VII’s anti-retaliation provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant.” Mitchell v. Planned Parenthood of Greater N.Y., Inc., 745 F. Supp. 3d 68, 91 (S.D.N.Y. Aug. 16, 2024) (quotation marks omitted).

Practical Implications

Post-Muldrow, there is likely to be a rise in litigation. Employers will need to train their staff to ensure they have adequately documented and justified any change or difference in duties, tasks, disciplinary actions, and the like. It is also expected that more cases typically decided at earlier stages of litigation, whether a motion to dismiss or summary judgment, are going to be more likely to proceed to trial, which will likely have an impact on risk assessment by employers and damages claimed by plaintiffs.