In April of this year, the U.S. Supreme Court issued a decision with the potential to significantly alter the scope of employment discrimination claims. The case, Muldrow v. City of St. Louis, addressed what employer actions would be considered “adverse employment actions” for purposes of discrimination claims. The court articulated a standard that seemed more lenient, thus potentially permitting a broader definition of what constitutes an “adverse employment action.” Since Muldrow, litigants before lower courts have argued that a variety of different acts or omissions constitute adverse employment actions, relying on the “some harm” standard announced by the Supreme Court. This is illustrated by four recent cases from the Kansas federal district court.
A brief review of SCOTUS’s Muldrow decision
In Muldrow, the Supreme Court unanimously stated that to prove employment discrimination, an employee “must show some harm respecting an identifiable term or condition of employment” but need not show “that the harm incurred was ‘significant.’” Prior to Muldrow, adverse employment actions were discussed by courts in terms of disciplinary actions such as discharge, denial of promotion, not getting a pay raise in connection with a performance evaluation, etc. In such scenarios, the “harm” at issue was clearly identifiable and typically involved a “loss” of some sort to the employee, such as the loss of a job or pay. In Muldrow, the specific harm the employee alleged was a job transfer that did not result in a loss of pay or benefits. The court remanded the case to the lower court to determine whether the job transfer constituted an “adverse employment action” under the standard announced.
Different cases, different interpretations from Kansas federal court
Turning to the first of the four Kansas cases since Muldrow, McCray v. McDonough (8/27/24), the court analogized the plaintiff’s characterization of her workplace to “a television series about the workplace” in which “employee-supervisor tensions run high, and interpersonal conflicts often overshadow the job itself.” However, the court found that “[w]hile the office-place clashes are less than desirable,” the plaintiff’s allegations were not sufficiently adverse to support an inference of race discrimination. The court addressed plaintiff’s allegations under the Muldrow standard of “some disadvantageous change” in an employment term or condition or “some harm” relative to an identifiable employment term or condition. The plaintiff’s allegations of harm or disadvantage consisted of not being provided training, incurring an increased workload; being denied an opportunity to speak during a meeting; having her space “violated”; being yelled at; being accused of interfering with a co-worker’s leadership opportunity by taking over a meeting; and being threatened with termination. The court found none of plaintiff’s allegations met the Muldrow standard of some disadvantage or harm relative to a term or condition of employment. It considered several of plaintiff’s allegations too general in nature. Others were not shown to interfere with the plaintiff’s ability to perform her job. The court noted existing Tenth Circuit case law holding that “a mere inconvenience or an alteration of job responsibilities does not qualify” as an adverse employment action.
In the second Kansas case, Mirza v. Uworld, LLC (9-11-24), the court noted that while the Tenth Circuit had “liberally defined” the term adverse employment action even before Muldrow, the Tenth Circuit’s case law at the time did require a “significant” change in employment status, benefits or responsibilities. The court then noted that Muldrow specifically held that the text of Title VII does not contain any requirement for an adverse employment action to have “significant” harm. The Kansas court focused on the language in Muldrow that the plaintiff show “some disadvantageous change” or “some harm” in an employment term or condition. It then noted “a mere inconvenience or an alteration of job responsibilities” does not meet the new standard. The court added that “(n)ot everything that makes an employee unhappy is an actionable adverse action.”
The Mirza court found the plaintiff’s allegations (i.e., that she was questioned by a co-worker as to whether she was going bald, told by another co-worker not to sleep with students because she would not be able to get away with it like a man would, and told in a text message by another co-worker that she was too sensitive about properly pronouncing ethnic names) did not disadvantage the plaintiff in any employment term or condition. The court noted none of these comments were from “an authority figure working for” the defendant, i.e. none were from a supervisor or manager.
In the third Kansas case, Juarez v. Midwest Division – OPRMC, LLC (11/05/24), the court noted, “The extent (if any) to which Muldrowwill revolutionize Title VII case law is not yet clear.” The court noted that under Muldrow, a plaintiff need only show “some harm” or “some disadvantageous change” as to an identifiable term or condition of employment. In this case, the adverse employment action alleged by the plaintiff was in the form of a hostile work environment. Specifically, the plaintiff alleged: 1) three male employees made sexually charged comments directed at her, 2) one male employee waited for her in a secluded area of the hospital in which she worked, 3) she was encouraged to drop her complaint about the harassment, 4) her complaint was never investigated by Human Resources, 5) the lack of action by her employer caused her to take an unpaid mental health leave of absence, 6) the conduct by her co-workers made her feel anxious and unsafe at work, and 7) she ultimately resigned due to her co-workers’ conduct and the employer’s lack of action on her complaint. The court found the plaintiff’s allegations could be interpreted by a jury to be “some harm with respect to an identifiable term or condition of employment.”
In the fourth Kansas case, Russell v. Christine E. Wormuth, Sect’y of the Army (11/07/24), the court noted that other district courts in the Tenth Circuit had applied Muldrow “more broadly” to address claims of adverse employment actions outside of job transfers. But the Kansas court refused to apply Muldrow to a hostile work environment harassment claim, stating that Muldrow did not suggest in any way that its adverse employment action analysis of “some harm” should apply to a hostile work environment claim.
Some early takeaways for employers
As can be seen from these four District of Kansas cases, the Muldrow standard is challenging to apply, particularly to workplace dynamics that are, frankly, commonplace. Still, there are a few takeaways:
- The action is more likely to meet the Muldrow standard if it is taken by a supervisor or manager, rather than a co-worker.
- It is still unclear as to whether the Muldrow “some harm” standard will apply to hostile work environment harassment claims. In one instance, the District of Kansas found it did; in another instance, the same court found it did not.
- An effective way to analyze an employee’s claim about an adverse employment action is to consider whether the employer’s action creates a “mere inconvenience” for the employee, as opposed to disadvantaging the employee in some way.
- Despite the lack of clarity on how Muldrow will be applied to hostile work environment claims, an employee still must show the hostility is based on a protected characteristic under employment discrimination laws, such as race, gender, or age.
