Justices’ New Bias Test Poised to Upend Workplace Harassment Bar

Federal courts are reconsidering a standard workers must meet for workplace harassment lawsuits, relying on a US Supreme Court ruling that lowered the threshold for the type of harm needed to support discrimination claims.

The high court’s April 2024 Muldrow v. City of St. Louis decision reshaped the anti-bias landscape under Title VII of the 1964 Civil Rights Act, allowing workers to only show they’ve experienced “some harm” that left them “worse off” regarding their employment. Muldrow also opened the door for lower courts to determine which employer actions—like terminations or denied promotions—can sustain a discrimination claim.

Since then, the US Court of Appeals for the Sixth Circuit and some district courts applied Muldrow’s standard for hostile work environment claims, a separate legal issue the high court didn’t specifically address. Such claims generally involve unwelcome harassment that can create an abusive environment and change a worker’s conditions of employment.

These early decisions represent a significant departure from the traditional requirement for harassment claims that plaintiffs demonstrate the workplace was “permeated with discriminatory intimidation, ridicule and insult” at a level that’s “severe or pervasive.”

“The courts have been far too rigid in throwing cases out based on ‘the severe or pervasive standard’ and not allowing them to go to a jury,” said Joseph Seiner, a law professor at the University of South Carolina, who called the severe or pervasive test a “major hurdle” for workers.

The evolving standard means harassment cases could more easily overcome the summary judgment phase of a lawsuit and advance to trial at district courts within the Sixth Circuit, employment law attorneys said. It could also expand with case law developing in other circuits, they said.

Additionally, the “some harm” threshold could lead to a more precise standard for hostile work environment claims, as inconsistent application among circuits often hinders allegations of offensive conduct from moving forward, they said.

Appellate Courts Weigh In

Hostile work environment claims are based on the same statutory language as disparate treatment—or intentional discrimination—claims, which require proof that a protected characteristic like gender, race, or religion led to an adverse employment action, the Sixth Circuit said.

Since Muldrow established that Title VII doesn’t require plaintiffs to show significant injury or harm to their employment conditions, that same principle should be applied to hostile work environment claims, it found. The Sixth Circuit includes district courts in Kentucky, Michigan, Ohio, and Tennessee.

But the Fourth Circuit held that the severe or pervasive requirement helps differentiate harassment that impacts job condictions and conduct that doesn’t.

Judges in the district court of Kansas are divided on the issue, and the Tenth Circuit may soon weigh in on a harassment case where Muldrow wasn’t applied. The high court justices never explicitly said “some harm” is also the standard for hostile work environment claims, the judge ruled in that case.

A Texas federal judge expressed a similar opinion in a lawsuit that settled earlier this month.

Applying a lower standard like “some harm” in the harassment context is logical because a worker should only demonstrate they’ve been discriminated against with respect to the terms and conditions of their employment, as Title VII requires, said Madeline Meth, a professor at Boston University School of Law who appeared as co-counsel for the plaintiff in Muldrow.

For example, a worker subjected to derogatory comments on the job would face harm like emotional distress. “That discrimination itself is the harm, so certainly, there should not be any requirement to also show that there’s harm” to other aspects of their employment like pay and job prospects, she said.

These cases are fact-specific and sometimes raise “complicated questions” such as whether a single incident like a sexual joke or the use of the N-word is enough to trigger a harassment claim, Meth said. There’s conflicting case law on these issues.

‘Textualism Reigns’

Adopting “some harm” would also align with the Supreme Court’s strict interpretation of laws based on their original meaning, as demonstrated in recent landmark Title VII workplace discrimination precedents, attorneys said.

“We’re in an era in which textualism reigns and courts are starting to say, ‘Should those extra textual rules still apply?’ This is one,” said Corey Devine, a partner at management-side firm Muskat Devine LLP.

In that vein, Muldrow instructed lower courts to “strictly construe the language of the statute” and not create additional requirements, said Brian D. Spitz, founding and managing partner at Spitz, The Employee’s Law Firm.

“The court system cannot do that,” he said. “It would be serving the role of the legislature.”

Title VII’s text doesn’t require a severe or pervasive showing for a hostile work environment claim. Meritor Savings Bank v. Vinson and Harris v. Forklift Systems were among the key high court cases in the 1980s and 1990s that developed the standard for determining actionable forms of workplace harassment.

Cultural Shifts

But the standard has become misaligned with shifting societal attitudes regarding what constitutes unlawful harassment in the modern workplace, attorneys said. The #MeToo movement prompted a reassessment of the legal requirements to support harassment claims.

California, Maryland, and New York are among at least five states and the District of Columbia that deviated from the federal standard by redefining their definitions of harassment and either lowering or completely eliminating the severe or pervasive requirement. New Jersey has similar pending legislation.

As cultural shifts influence judges in jurisdictions where the standard still prevails, and more states consider legislative changes, employers must proactively address workplace harassment to avoid costly liability risks, Devine said. Workplace training can mitigate these risks by helping management and employees understand the factors that could trigger hostile work environment claims, he said.

“Some employers over the years have gotten comfortable with the severe or pervasive standard and felt that it provided reasonable protections against” bias claims, Devine said. “If there are cases that are now chipping away at that standard, lowering it considerably, employers have got to pay a lot more attention.”