Circuit Courts Develop Broader Standard for Workplace Bias Harm

Federal courts have begun sketching out the contours of a new, worker-friendly doctrine for determining what type of employer actions can sustain a worker’s anti-discrimination lawsuit, though more development of the law is expected.

The US Supreme Court changed the landscape for workplace anti-bias litigation in April with its unanimous ruling in Muldrow v. City of St. Louis, which cleared away circuit court precedent requiring workers to show they suffered a materially significant injury or some other elevated harm standard.

The high court’s new threshold—calling on workers to show they’ve experienced “some harm” that left them “worse off” regarding the terms, conditions, or privileges of employment—creates an opening for workers to sue over far more than just allegedly biased terminations, denied promotions, and other straightforwardly damaging employment actions.

“Now courts are being bombarded by every possible action that might, on its face, be considered negative,” said Sandra Sperino, a discrimination law scholar at the University of Missouri. “Some of the courts are struggling with whether every potentially negative action meets the Muldrow test.”

Circuit courts have clarified some basic aspects of the new doctrine, even as they’ve sent sent many workplace bias cases back to trial courts to re-analyze the alleged harms at issue under Muldrow.

While Muldrow involved a female police officer claiming that a job transfer was sex discrimination in violation of Title VII of the 1964 Civil Rights Act, appeals courts have confirmed that the precedent also applies to other alleged harms and other anti-discrimination statutes.

Standard’s Scope

Circuit courts have said the new standard is appropriate for assessing claims of discriminatory harm brought under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Pregnancy Discrimination Act.

The US Court of Appeals for the Eleventh Circuit, for example, directed a district court to apply Muldrow to an ADA case involving written reprimands for failing to follow a county’s Covid-19 protocols for firefighters.

The Third Circuit similarly remanded a case for analysis on whether a state probation board denying a pregnant worker’s accommodation request qualified as an adverse employment action.

Circuit courts have also ruled that the denial of a religious accommodation and the rejection of a vacation request constituted actionable harm.

The new harm doctrine extending beyond Title VII transfers follows the Supreme Court’s logic in Muldrow, and makes sense given the similar language other laws use to describe discrimination, legal scholars said.

The new standard could prompt courts to consistently hold that accommodation denials alone are actionable, potentially closing existing rifts over how courts treat that issue, said Deborah Widiss, an employment law professor at Indiana University.

Some Harm, Not No Harm

The Supreme Court set a lenient test for showing harm by removing any requirement that the alleged injury be material or tangible, while lowering the bar to just “some harm.”

“It’s like if you said to somebody, ‘This thing cost some money,’” said Brian Wolfman, a Georgetown Law professor who represented Jatonya Clayborn Muldrow at the Supreme Court. “That could be a penny, that could be $100. It’s just some money.”

Nevertheless, circuit courts have rebuffed claims of actionable injuries under that minimal harm standard.

The Eleventh Circuit rejected a former MetLife Group Inc. executive’s claim that she was harmed by the company assigning her administrative tasks when she was the company’s only female vice president. That appeals court also held that a Learjet Inc. mechanic couldn’t sue for race discrimination based on being assigned difficult or unpleasant tasks, like cleaning fuel tanks and toilets.

The First Circuit ruled against a security guard who sued based on supervisors failing to give him pointers during an off-duty practice session at a shooting range, and admonishing him for where he ate, parked, and changed his clothes.

Circuit courts also found no actionable conduct when employers reassigned a casework manager from a central hub to a regional office, extended a videographer’s introductory period, and excluded an office clerk from meetings.

Muddy Parts of Muldrow

The first wave of rulings suggests that circuit courts will split on whether some kinds of harms are actionable as they develop different approaches to the new test, said the University of Missouri’s Sperino.

“Some circuits will read Muldrow broadly and also make statements about their expectations about Muldrow,” she said. “Other circuits are going to do a harm-by-harm analysis with very little extra discussion that can be fruitfully used for the next case.”

Sperino, who’s researched district and circuit court decisions for an upcoming law review article on Muldrow, found various aspects of the new doctrine that are causing some difficulties.

Some courts have struggled with whether the threat of future harm is actionable, such as an instance in which a person doesn’t apply to a position because a supervisor tells them they aren’t right for the job for an allegedly discriminatory reason, Sperino said. It’s unclear if getting waved off rather than formally denied is sufficient, given that they could theoretically have applied and gotten the job, she said.

Another issue that’s muddled in the lower courts is how explicitly must workers prove harm, Sperino said.

“Some courts appeared to require plaintiffs to connect the dots with evidence, while other appear to connect the dots themselves,” she said.

Courts have also cited Muldrow when discussing retaliation claims, although the harm standard for retaliation was set by the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White.

The retaliation harm standard is in one way stricter than the discrimination standard, as plaintiffs must show that an alleged injury is materially adverse. But in another way it’s looser, because the harm doesn’t have to be tied to the terms, conditions, or privileges of employment.

“The multitude of standards applicable to different employment discrimination claims confuses courts,” said William Corbett, an employment law professor at Louisiana State University. “One must almost be a specialist in discrimination law to keep them straight.”