More than a year has passed since the U.S. Supreme Court unanimously held in its April 2024 decision in Muldrow v. City of St. Louis, Missouri, 601 U.S. 346, 144 S. Ct. 967, 218 L. Ed. 2d 322 (2024) that employees need only show “some” harm to advance a discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII), rather than “significant” harm. In this alert, we examine how the courts have applied the “some harm” standard to employment discrimination claims.
What Did the Supreme Court say in Muldrow?
As we informed you in our prior alerts on the Muldrow decision, U.S. Supreme Court Eases Standard for Employees Claiming Discriminatory Job Transfers and U.S. Supreme Court Adopts New Standard for Discriminatory Job Transfer Claims Under Title VII, the plaintiff in Muldrow was involuntarily transferred from the police department’s specialized intelligence division to a more traditional “uniformed” position and replaced by a male colleague. While the transfer did not result in a change to the plaintiff’s pay and benefits, it deprived her of various “perks” she previously enjoyed (e.g., an unmarked vehicle, heightened security clearance and authority to investigate high-profile crimes). The Supreme Court clarified that employees alleging their transfer was discriminatory under Title VII need only show their “transfer brought about some ‘disadvantageous’ change in [their] employment term[s] or condition[s]” and that Title VII does not require a plaintiff to show “serious” or “significant” harm.
Cases Interpreting Muldrow’s “Some Harm” Standard in Favor of Employees
Below, we highlight a sampling of actions courts have said would constitute “some” harm within the meaning of Muldrow and may subject an employer to liability under Title VII.
- Replacing a female employee’s prestigious client accounts with “small, problematic accounts,” causing the employee to miss sales quotas, combined with excluding her from social events and thereby depriving her of networking opportunities to solicit business. See Riggs v. Akamai Techs., 2024 WL 3347032 (S.D.N.Y. July 8, 2024).
- Placing an employee on paid involuntary leave and requiring the employee to undergo urine testing and counseling as a condition of reinstatement following an internal investigation. See Ciotti v. City of New York, 2025 BL 24878, 2025 WL 308022 (S.D.N.Y. 2025).
- Denial of a pregnancy accommodation request. See Peifer v. Pennsylvania, 106 F.4th 270 (3d Cir. 2024).
- Denial of religious exemptions from vaccination requirements. See Cole v. Grp. Health Plan, Inc., 105 F.4th 1110 (8th Cir. 2024).
United States District Court for the Southern District of New York[1]
In Riggs, a sales representative alleged her employer discriminated against her based on sex when she, unlike her male co-workers, was assigned “additional small, problematic accounts,” requiring her to devote more time to less prestigious matters and causing her to miss her sales quota. See Riggs, 2024 WL 3347032, at *2. She also alleged she had been excluded from social events where clients were invited, thus depriving her of opportunities to network and solicit business. The Court held that the employee “pleaded plausibly a disparate treatment claim under Title VII,” and denied the employer’s motion to dismiss the Title VII claim. Id. at *6.
In Ciotti, the Court stated that placement of an employee on an involuntary leave – even if paid – and requiring the employee to undergo urine testing and counseling left the employee “worse off.” See Ciotti, 2025 WL 308022, at *13. The Court reasoned the counseling sessions, which it described as “repeated[,] unwanted, and indeed harassing,” coupled with the “repetitive and utterly unnecessary urine testing,” left the employee “devastated.” Id. Thus, the Court held the employee presented sufficient facts to support that the employer may have discriminated against her based on sex in violation of Title VII.[2]
United States Court of Appeals for the Third Circuit[3]
In Peifer, the Third Circuit held that under Muldrow, an employer’s denial of an employee’s request for light duty as a pregnancy accommodation might constitute an adverse employment action under Title VII. See Peifer, 106 F.4th 270. The Court reasoned that in Muldrow, the Supreme Court “made clear that adverse employment action need not be serious.” Id, at 277. Thus, the Third Circuit remanded the case to the District Court to determine whether the employee asserted harm sufficient to meet Muldrow’s "some harm" standard when the employer denied her pregnancy accommodation request.[4]
United States Court of Appeals for the Eighth Circuit[5]
In Cole, the Eighth Circuit held that public scrutiny flowing from an employer’s vaccination requirements might constitute “some harm” under Muldrow. See Cole, 105 F.4th 1110. Employees were permitted to request religious or medical exemptions from the employer’s vaccination mandate, subject to conditions (i.e., unvaccinated employees were required to always wear masks and additional PPE as appropriate and agree to reassignment). Vaccinated employees were given orange badge locks permitting them to remove their masks in certain areas.
The employee, who had been working unvaccinated and without restrictions for over a year prior to the vaccination mandate, requested a religious accommodation exempting her from the mandate and conditions. The employer exempted her from the mandate but not the conditions. The employee argued that the orange badge locks constituted a public indication of vaccination status and together with the masking requirements were intended to single out the unvaccinated and make them the subject of scorn, ridicule and embarrassment. She also alleged the resulting criticism from her vaccinated co-workers led to her attending work meetings on Zoom instead of in person to avoid uncomfortable office situations.
The Circuit Court held that the social consequences of issuing badge locks only to vaccinated employees, coupled with the employee’s reassignment to different work settings, may constitute “some harm” under Muldrow, and remanded the case to the District Court to consider the facts in light of Muldrow.
Cases Interpreting Muldrow’s “Some Harm” Standard in Favor of Employers
Courts have failed to find “some harm” sufficient to trigger a Title VII violation when the adverse actions have not resulted in any disadvantageous change to the terms and conditions of an employee’s job. Below we highlight actions courts have said would not violate Title VII.
- An administrative error resulting in informing an employee she would be subjected to more performance reviews than her male counterparts when in fact that did not occur. See O’Horo v. Bos. Med. Ctr. Corp., 131 F.4th 1 (1st Cir. 2025).
- Admonishing an employee without imposing formal consequences. See Rios v. Centerra Group LLC, 106 F.4th 101 (1st Cir. 2024).
- Undesirable work assignments. See Budhan v. Brightworks Sustainability LLC, 2025 WL 919926 (S.D.N.Y. Mar. 26, 2025).
- Administrative leave pending an investigation. See Gopal v. University of Conn., 2025 WL 696557 (D. Conn. Marc. 31, 2025).
- Temporarily separating an employee from alleged harassers pending an investigation. See Williams v. Memphis Light, Gas & Water, 2024 WL 342171 (6th Cir. 2024).
- Excluding an employee from meetings unrelated to her position. Id.
United States Court of Appeals for the First Circuit[6]
In O’Horo, the First Circuit concluded that to be successful in a Title VII discrimination claim under Muldrow, the alleged adverse action must change the terms and conditions of employment. See O’Horo, 131 F.4th 1. To this end, the First Circuit held that a scheduling discrepancy resulting in an employee being informed she would be subjected to more performance reviews than her male counterparts did not rise to the level of an adverse action under Muldrow because the employer did not actually conduct additional performance reviews, and thus the terms and conditions of her employment remained unchanged.
In Rios, the First Circuit held that an employer’s admonishing an employee, who worked as a part-time security guard, for eating at his post, parking in spots near the guard rest house and using the guard rest house bedroom to change clothes, were not consequences constituting disadvantageous changes in the terms or conditions of the employee’s employment. See Rios, 106 F.4th 101. The Court wrote, “none of these incidents resulted in any formal discipline. In fact, Rios testified his supervisors continued to allow him to eat at his post despite the one admonition for that activity.” Id. at 112.
United States District Court for the Southern District of New York
The S.D.N.Y. disagreed with the employee in Budhan that an employer’s assigning her undesirable work assignments and allegedly depriving her of client-facing presentation opportunities fell within the “some harm” standard established in Muldrow. See Budhan, WL 919926 (S.D.N.Y. Mar. 26, 2025). The Court held that the complaint provided nothing supporting that the employee experienced more than non-actionable “minor annoyances” or “trivial” inconvenience from having less-than-ideal work assignments.
United States District Court for the District of Connecticut[7]
The Court in Gopal disagreed that an employer discriminated against an employee based on race, color and national origin when it initially placed him on administrative leave pending an investigation into misconduct. See Gopal, WL 696557. Distinguishing the facts of Muldrow from those in Gopal, the Court held that the employee, who was placed on administrative leave pending an internal investigation for impropriety, was not subjected to the type of consequences imposed upon the employee in Muldrow. The Court reasoned that despite Muldrow, “jurisprudence still seems to permit placing an employee on paid administrative leave pending an investigation…, thus allowing employers to take responsible steps (particularly in the case of a university and a public sector employer) to protect against any ongoing misconduct by the employee under investigation without rendering such employee any ‘worse off.’” Id. at *17. Further supporting the Court’s conclusion that no harm occurred was the lack of evidence the employee’s colleagues knew he was placed on administrative leave, or that he was prohibited from teaching classes.
United States Court of Appeals for the Sixth Circuit[8]
The Sixth Circuit decided in Williams that temporarily relocating an employee to a different office pending an investigation, so that she would not encounter the same staff she alleged were harassing her, did not constitute an adverse action under Muldrow. See Williams, 2024 WL 342717. The Court was not convinced by the employee’s argument that working away from the main office made her "worse off" because she could not communicate directly with her supervisors and instead had to email them. Id. at *5. The Court also held that excluding the employee from meetings unrelated to her position, and instructing her not to eat food she did not pay for at a retirement party, did not change any terms or conditions of her employment such that would violate Title VII.
Retaliatory Conduct Must Still Be Materially Adverse Under Title VII
The Supreme Court explained in Muldrow that the heightened “materially adverse” and “significant harm” standards still apply to retaliation claims. That is, to be successful in a Title VII retaliation claim, it is insufficient for an employee to show an employer’s alleged retaliatory action caused “some” harm. Rather the employee must show the alleged retaliatory action was “materially adverse” and caused “significant harm.” See Muldrow, at 257 (citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U. S. 53, 64 (2006)).
United Stated Court of Appeals for the Second Circuit[9]
The Second Circuit held that the City of New York did not retaliate against an employee in violation of Title VII when it placed the employee (and other employees) on a waitlist for an employee training program. See Khazin v. City of New York, WL 1091241 (2d Cir. Apr. 8, 2025). According to the Second Circuit, to be materially adverse, the alleged retaliatory conduct must be more than a “petty slights” or a “minor annoyances” that employees experience. Id.at *2
Muldrow Applies to Disability Claims Under the Americans with Disabilities Act
Courts have held that Muldrow applies to discrimination claims under the Americans with Disabilities Act (ADA). See Rios, 106 F.4th 101 (1st Cir. 2024) (applying Muldrow to an ADA claim wherein the employee alleged his employer discriminated against him based on a disability (diabetes) by terminating him for falling asleep on the job); Davis v. Orange Cnty., 2024 WL 3507722 (11th Cir. July 23, 2024) (stating the 11th Circuit uses the same framework to evaluate Title VII and ADA claims); and Ciotti, 2025 WL 308022, at *13 (S.D.N.Y. 2025) (holding that Muldrow applied to a claim an employer subjected an employee, who suffered from post-partum depression, to disability-related discrimination).
Key Takeaways
- “Some” harm means adverse actions that leave employees “worse off.” While the focus of the U.S. Supreme Court’s review in Muldrow was on an employment transfer, as we reported in this alert, courts have clearly established that the lower “some” harm bar for Title VII (and the ADA) applies to all employment actions.
- “Minor annoyances” are insufficient under Muldrow. Courts draw the line at actions that can best be described as “minor annoyances” or “trivial” inconveniences that have no material effect on the terms and conditions of an employee’s employment.
- Retaliation claims retain the heightened standard. For a Title VII retaliation claim to survive, the conduct must still pass the longstanding “materially adverse” standard. Thus, the alleged retaliatory action must have caused “significant harm.”
[1] The S.D.N.Y. has jurisdiction over New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess and Sullivan Counties.
[2] It should be noted that in Ciotti, the employer initiated the involuntary paid leave after the employee, who struggled with postpartum depression, made sexual harassment complaints against another employee. We discuss the disability discrimination implications of this case below.
[3] The Third Circuit has jurisdiction over Pennsylvania, New Jersey and Delaware.
[4] While not directly addressed in Peifer, it should be noted that the employer categorically denied the request, without engaging in an interactive process. See Peifer, at 274 (employer almost immediately denied the request due to the requested accommodation only being available for work-related injuries).
[5] The Eighth Circuit has jurisdiction over North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas.
[6] The First Circuit has jurisdiction over Massachusetts, Rhode Island, New Hampshire and Maine.
[7] The District Court of Connecticut has jurisdiction over all counties in Connecticut.
[8] The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio and Tennessee.
[9] The Second Circuit has jurisdiction over Connecticut, New York and Vermont.
