The U.S. Supreme Court’s April 2024 decision in Muldrow v. City of St. Louis appears to have expanded the universe of “adverse employment actions” that could support an employee’s discrimination claim. The new standard has required courts to consider whether much more generalized and subjective sorts of alleged harm are sufficient to support an employment discrimination claim. A federal district court in New Mexico recently analyzed whether allegations of “being criticized, demeaned and humiliated” would support race and age discrimination claims.
The Supreme Court stated in Muldrow 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.’” This phrase has led to discussion about what sort of harm an employee must show. Before Muldrow, cases discussed adverse employment actions in terms disciplinary actions such as discharge, denial of promotions, or not getting a pay raise with a performance evaluation. The “harm” at issue was clearly identified and usually accompanied by 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 transfer that didn’t result in a loss of pay or benefits.
Under the new Muldrow standard, an employee must show “some harm” involving a term or condition of employment, but the harm doesn’t have to be significant. The standard arguably implies the harm might not involve an adverse employment action at all by the employer. The harm alleged still must be identifiable and related to the employee’s terms and conditions of employment. In Muldrow, the Supreme Court noted the employee’s transfer changed the conditions of her work—specifically, a rotating shift rather than set work hours, fewer opportunities to work in important investigations as a police officer, reduced responsibilities, and the loss of some privileges, like driving an unmarked police vehicle.
Robert Smith was a 63-year-old African American who worked as an IT supervisor for the U.S. Department of Veterans Affairs. He claimed he was subject to a hostile work environment based on his race in violation of Title VII of the Civil Rights Act of 1964 and based on his age in violation of the Age Discrimination in Employment Act (ADEA).
One of Smith’s specific allegations was that his supervisor was biased against him based on his age. He claimed the supervisor said he should “retire so they could be happy.” The district judge found this remark constituted a “mere offensive utterance” rather than intimidation or ridicule so severe that it altered Smith’s conditions of employment. Thus, the court found the comment wasn’t evidence of some harm respecting an identifiable term or condition of employment to support his discrimination claim.
The district court similarly dismissed Smith’s other allegations of criticism or humiliation from his supervisor as “so mild or isolated [that] a reasonable juror could not conclude that it altered the conditions of [his] employment.” These other alleged acts of humiliation included the supervisor reassigning to this employee a project that another worker had been working on, being excluded from two meetings and an email chain, and being denied training.
The district court noted that job assignments are “neither automatically actionable nor categorically non-actionable” in Title VII cases. Rather, courts take a case-by-case approach to determine whether there is objective evidence of “material disadvantage or merely the bald personal preferences of the [employee].” Here, this job reassignment wasn’t objectively more onerous, less prestigious, or less desirable than any other project Smith had been assigned to perform.
On the claims of being excluded from meetings, the district court found that neither allegation supported a finding that altered Smith’s terms or conditions of employment. The court stated the not being included in two meetings was “conduct so mild and sparse” that no reasonable juror would conclude that it altered an identifiable term or condition of employment. The district court noted, too, that the supervisor who excluded him from the meetings had supervised him for a lengthy period of time—not being included in two meetings over that period couldn’t be said to alter his conditions of employment.
On being left off the one email chain, the district court added that Smith didn’t show that any similarly situated employee was included in the email chain while he was excluded. Thus, there was no evidence showing any discriminatory animus toward him in his exclusion from the email chain.
On the denial of training, the district court found no evidence to show that Smith suffered any consequences from missing the training he had requested. Thus, the court stated there was no harm to him related to any identifiable term or condition of employment. Smith v. McDonough, 2024 WL 2804428 (D. N. Mexico).
The Smith case illustrates one way in which the lower courts are analyzing and deciding employment discrimination claims under the Muldrow standard of “some harm.” In addressing these situations, you must bring the discussion back to what is the identifiable term or condition of employment that is affected by the supervisor’s or manager’s employment decision. The question isn’t whether an employee feels there is some harm, but whether there is a change in a term or condition of employment that disadvantages and harms the employee in some way.
Accompanying this question is the ever-present requirement in any employment discrimination claim for the employee to show that he or she was treated differently than a similarly situated coworker who is not in the same protected classification. While Muldrow expands the sorts of employment actions that may be the basis of a discrimination claim, it doesn’t replace the requirement that an employee prove discrimination based on a legally protected characteristic occurred.
Tony Puckett is an attorney in the Oklahoma City office of McAfee & Taft. He can be contacted at tony.puckett@mcafeetaft.com.
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