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12/25/24
The Supreme Court’s New “Some Harm” Standard: Understanding Muldrow v. City of St. Louis
In April 2024, the Supreme Court significantly altered the employment discrimination landscape with its decision in Muldrow v. City of St. Louis (April 17, 2024). At issue was whether an employee challenging a job transfer under Title VII must show that the transfer caused them “significant” harm or “material” disadvantage. In a decision authored by Justice Kagan, the Court rejected this heightened standard that many circuits had adopted.
The facts were straightforward: Sergeant Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s Intelligence Division. In 2017, her new commander transferred her to a uniformed position, allegedly because of her gender, seeking to replace her with a male officer. While Muldrow‘s rank and pay remained the same, her new role involved different responsibilities, a less regular schedule including weekend shifts, and loss of certain perks like an unmarked take-home vehicle.
The Eighth Circuit had affirmed dismissal of Muldrow‘s discrimination claim, holding that she failed to show the transfer caused a “materially significant disadvantage.” The Supreme Court reversed, establishing a new, lower threshold: an employee need only show “some harm” or “some ‘disadvantageous’ change” to an identifiable term or condition of employment. The Court emphasized that Title VII’s text nowhere requires harm to be significant or substantial.
Notably, the Court distinguished between discrimination claims and retaliation claims. For retaliation, the Court preserved the higher standard requiring “significant” harm established in Burlington Northern v. White – an action serious enough to dissuade a reasonable worker from making discrimination complaints. But for underlying discrimination claims, the Court rejected any heightened harm requirement, reasoning that Title VII “flatly prevents injury to individuals based on status, without distinguishing between significant and less significant harms.”
Kansas Courts Grapple with Muldrow‘s Impact on Hostile Work Environment Claims
In the months following Muldrow, Kansas federal courts have largely resisted applying its “some harm” standard to hostile work environment claims. A review of recent decisions from the District of Kansas reveals that most judges continue to apply the traditional “severe or pervasive” standard, seemingly viewing Muldrow as limited to discrete discriminatory acts like transfers.
For instance, in Blaine v. Mystere Living & Healthcare (July 25, 2024), Judge Crouse applied traditional hostile work environment standards requiring proof that the workplace was “permeated with discriminatory intimidation, ridicule and insult” that was sufficiently “severe or pervasive.” While citing Muldrow elsewhere in the opinion when discussing retaliation, the court did not incorporate Muldrow’s relaxed “some harm” standard into its hostile work environment analysis.
Similarly, in Bradley v. Unified Government (August 20, 2024), Judge Robinson made no reference to Muldrow when analyzing a hostile work environment claim, instead adhering to pre-Muldrow standards. Even when presented with evidence of racially offensive conduct, including a racist Obama cartoon, the court continued to evaluate whether such incidents were sufficiently severe or pervasive under traditional standards.
This pattern repeated in Woods v. Edelman Financial (August 26, 2024), where Judge Teeter’s opinion, though decided months after Muldrow, did not incorporate Muldrow‘s framework into its hostile work environment analysis. The court relied on pre-Muldrow precedent requiring proof of severe or pervasive harassment creating an abusive working environment.
In Mirza v. UWorld, LLC (September 11, 2024), Judge Melgren extensively discussed Muldrow in analyzing the plaintiff’s gender and race discrimination claims but notably declined to apply it to the hostile work environment analysis, instead maintaining the traditional severe or pervasive standard.
Finally, in Russell v. Wormuth (November 7, 2024), Judge Crabtree explicitly considered but rejected applying Muldrow to hostile work environment claims, noting that another district court had held that Muldrow does not alter the hostile work environment framework given the Supreme Court’s long history of defining those requirements.
An Emerging Evolution: Judge Vratil’s Post-Muldrow Analysis
Beginning with Juarez v. Midwest Division (November 5, 2024), Judge Vratil charted a different course. In Juarez, Judge Vratil devoted significant attention to Muldrow‘s implications, expressing frustration that the parties failed to address how Muldrow impacted hostile work environment analysis. Frustration with the parties’ briefing aside, Judge Vratil indicated that Muldrow’s implications extend to hostile work environment claims through their shared foundation in adverse employment actions affecting terms and conditions of employment. By recognizing that a hostile work environment itself constitutes a “term of employment,” Judge Vratil bridged Muldrow’s “some harm” standard from tangible employment acts to hostile work environment analysis.
Judge Vratil expanded this framework in EEOC v. Chipotle Services (December 3, 2024), where she explicitly viewed the hostile work environment claim “through the lens of Muldrow,” asking whether the plaintiff suffered “some harm” rather than applying the traditional “severe or pervasive” standard.
This evolution in Judge Vratil’s analysis raises a fundamental question left unresolved by Muldrow: If “some harm” is sufficient for discrete discriminatory acts, how can courts justify requiring harassment to be “severe or pervasive”? While most Kansas courts have continued applying traditional hostile work environment standards, Judge Vratil’s recent opinions suggest a Muldrow may require reconceptualizing hostile work environment doctrine.
Although there is no such thing as the law of the district, there is now a split of authority within the District of Kansas. In Russell v. Wormuth (November 7, 2024), Judge Crabtree rejected Judge Vratil’s approach, noting that at least one case from another jurisdiction has concluded Muldrow‘s “some harm” standard cannot displace decades of Supreme Court precedent requiring hostile work environment claims to meet the “severe or pervasive” threshold.
Conclusion
Until the Tenth Circuit provides guidance, this tension between Muldrow’s emphasis on Title VII’s text and traditional hostile work environment analysis is likely to persist. The divergent approaches to Muldrow’s application highlight a broader uncertainty in employment discrimination law. While Muldrow clearly lowered the bar for challenging discrete discriminatory acts, its impact on hostile work environment claims remains unsettled.
The current split within the District of Kansas creates meaningful challenges for practitioners advising their clients. The substantial difference between “some harm” and “severe or pervasive” standards means that similar factual scenarios could lead to different outcomes depending on the assigned judge. This makes it difficult for attorneys to provide clear guidance about whether particular conduct is actionable. Employers face particular uncertainty when developing workplace policies, as the applicable standard significantly impacts what conduct might merit further investigation or response. Until the Tenth Circuit provides guidance on Muldrow’s application to hostile work environment claims, both plaintiffs and defendants must navigate this uncertainty.
Schrag on Law 