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A prior BeLabor the Point posting discussed the US Supreme Court’s re-calibration of what is considered to be an actionable harm under federal anti-discrimination laws in the 2024 opinion in Muldrow v. City of St. Louis. As a follow up to that article, we conducted a survey of where courts across the country are drawing the line between an actionable harm and an insignificant harm in discrimination cases.
Ultimately, courts appear to be struggling with this line-drawing exercise in the wake of Muldrow and are giving much greater deference to allegations which raise harm or disadvantage, even if it may be insufficient to materially alter the terms and conditions of employment under the historical standard. It is important to note that the harms listed below as sufficient for the case to proceed, as with the harms in Muldrow, do not establish liability, they are merely sufficient to survive early dismissal. The examples below are pulled from various court opinions around the country applying the Muldrow approach.
| Sufficient harm for the case to proceed | Insufficient harm for the case to proceed |
| – Denial of a requested transfer made by a woman when similarly situated men were not denied their requested transfers (title and compensation remained unchanged). – Denial of the opportunity to present research at a professional conference. – Reassignment from less prestigious work assignment, depriving employee of opportunities to network. – Delay and denial of telework. – Cancellation of a flexible work schedule. – Manager using profane language, ignoring employee, and denying leave and training requests. – Denial of opportunity to serve as acting head of department. – Placement in supervisory support program that restrained employee’s ability to engage in outside employment offered to other employees. – Denial of credit hours, which could be tied to compensation or vacation time. – Reassignment to a position with fewer responsibilities and a less desirable schedule. – Reprimands that could serve as a building block for suspension, demotion, or termination. – Being assigned materially less work, which factored into termination. – Reassignment to a job assignment considered to be inferior. | – Performance demands, reprimands critiques, unwelcome comments, or “Mere admonitions” without consequences, unless they separately meet the “serious and pervasive” standard for establishing a hostile work environment. – Being excluded from attending congressional briefing and rejection of hiring recommendation. – Being excluded from two work events across a two-month period, in the context of a lengthy term of employment. – Poor performance ratings, inquiries into performance, and reinstatement on a previously discontinued project. – Several month delay in receiving requested uniform pants. – Denial of request for diversity-related data. – Excessive supervision and instituting a PIP. – False accusations of unprofessional behavior, forced attendance at meetings, and unnecessary reminders about completing work. – Temporary off-site working assignment during investigation of complaints. – Speculative harms, such as investigations into work performance. – Reassignment with no material diminution of terms and conditions of employment. |
Courts will continue working to define the parameters of actionable harm in the wake of Muldrow, but in the meantime, employers should be mindful of the lower threshold when taking any action affecting an employee’s job title, work assignment, work location, or progressive discipline step. If you have concerns about the impact of a planned or desired action, particularly for an employee who is a member of a protected class, contact your employment attorney.