Muldrow v. City of St. Louis: A Huge Win for Employees in Employment Discrimination Claims
During Harvard’s Antonin Scalia Lecture Series in 2015, Justice Elena Kagan famously stated, “We’re all textualists now,” emphasizing the judiciary’s commitment to statutory integrity.[1] However, in the 60 years following Congress’ enactment of Title VII of the Civil Rights Act of 1964, some courts ran rampant reading additional requirements into the statute. As a result, many claims of employment discrimination that could have been viable were quashed at summary judgment as courts unevenly issued decisions varying from circuit to circuit.
In Muldrow v. City of St. Louis, 144 S. Ct. 967 (2024), a recent decision from April 2024, the Supreme Court issued a unanimous decision resolving the long-standing circuit split regarding what degree of harm constitutes an “adverse employment action” in Title VII discrimination claims. In Muldrow, a decision written by Justice Kagan, the Court lowered the threshold of what harm is actionable, opening a pathway for employees to pursue a greater scope of discrimination claims.[2]
This article explores the history of Title VII’s harm standard as interpreted by the circuit courts pre-Muldrow, the Supreme Court’s landmark decision in Muldrow, and how the Muldrow decision broadened the type of harm that is actionable in Title VII and other anti-discrimination laws. This article also discusses questions the Muldrow decision raises concerning what constitutes an “adverse action” in the context of retaliation claims. Finally, this article offers some criticism of the differing standards applicable to discrimination claims versus retaliation claims and suggests possible reform.
Pre-Muldrow Circuit Court Split
Title VII was enacted to eliminate discrimination against employees with respect to “compensation, terms, conditions, or privileges of employment,” because of that person’s race, color, religion, sex, or national origin.[3] As the Supreme Court has emphasized, Congress intended this passage to be read as broadly as possible to eliminate disparate treatment in employment.[4] For example, in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-66 (1986), the Supreme Court made clear that Title VII’s protections were not limited to economic or tangible discrimination, such as demotions or terminations, but could in fact include non-monetary actions, like sexual harassment. More than 10 years later, the Supreme Court reiterated its broad interpretation of what types of harm could be actionable in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). In Oncale, the Court held that the language of Title VII requires employees to show that an employer’s action brought about some “disadvantageous” change in an employment term or condition.[5] In doing so, the Court did not impose any degree of heightened materiality. The Supreme Court once again clarified the breadth of harm that could be actionable in Bostock v. Clayton County, Georgia, 590 U.S. 644, 658 (2020), wherein the Court stated that the statutory phrase, to “discriminate against,” simply means to “treat[] a person worse.”
Despite the Supreme Court’s guidance, many circuit courts have imposed a heightened threshold of harm employees are required to show in discrimination claims. Courts have couched this heightened threshold in varying language. For example, in Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999), later abrogated by Muldrow, the Fourth Circuit required employees to demonstrate that an employer’s action posed a “significant detrimental effect” to the terms or conditions of their employment.[6] Unlike the Fourth Circuit’s “significant detrimental effect” standard, the Seventh Circuit, in Spring v. Sheboygan Area School District, 865 F.2d 883, 885-86 (7th Cir. 1989), required employees to show that employers took a “materially adverse employment action.” In Spring, the Seventh Circuit held that a transfer without any economic harm was not “materially adverse,” and, thus, was insufficient to support a Title VII discrimination claim.[7] Likewise, the Sixth and 11th circuits previously required employees to demonstrate a “serious and material change” to survive summary judgment. The Eighth Circuit imposed the strictest harm requirement, finding only “ultimate employment decisions” — hiring, failure to promote, firing — could constitute adverse employment actions. Although these cases used different phraseology, each required employees to assert some materially tangible or economic harm.
Other circuits, however, embraced a broader perspective. For example, in Chambers v. District of Columbia, 35 F.4th 870, 872, 876-77 (D.C. Cir. 2022), the D.C. Circuit, en banc, overruled prior precedent requiring an “objectively tangible harm” or “material adversity.” According to the Chambers court, Title VII prohibited even “garden-variety” discrimination; as such, the court held the heightened harm requirement invalid.[8] Similarly, the Fifth Circuit, in Hamilton v. Dallas County, 79 F.4th 494, 501-02 (5th Cir. 2023), abandoned their long-standing, narrow “ultimate employment decision” requirement. In Hamilton, the female plaintiffs alleged the county’s policy of preferential weekend scheduling for male employees discriminatorily affected the terms and conditions of their employment.[9] In reversing its prior “ultimate employment decision” standard, the Fifth Circuit held that the employee need only show that they were discriminated against “with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment’ — just as the statute says.”[10]
Despite the slow shift back towards what the authors believe is the proper Title VII statutory interpretation, the implementation of the various different interpretations and harm thresholds resulted in inconsistent applications of Title VII protections across the circuits.
The Muldrow Decision
As previously mentioned, in April of 2024, the Supreme Court addressed the circuit split regarding what level of harm constituted adverse action for purposes of Title VII discrimination claims in Muldrow.[11] The plaintiff, Sgt. Jatonya Muldrow, worked as a highly respected, plainclothes officer in the Intelligence Division for the St. Louis Metropolitan Police Department.[12] In her specialized position, she investigated human trafficking cases, oversaw the Gang Unit, served as head of the Gun Crimes Unit, was deputized with the Federal Bureau of Investigation, and enjoyed various other employment benefits.[13]
After becoming commander of her division, her captain replaced her with a man who “seemed a better fit for the [d]ivision’s ‘very dangerous’ work,” and Muldrow was laterally transferred to a uniformed position.”[14] In the new position, Muldrow’s duties consisted of mainly administrative tasks, her schedule became irregular, she lost her FBI status and government-issued car.[15] The district court held that these employment actions were “minor alterations of employment, rather than material harms” and granted summary judgment to the city.[16]
Muldrow appealed, and the Eighth Circuit affirmed the lower court’s decision.[17] On appeal, the Supreme Court reversed, holding that employees need not show that the adverse action taken against them was material or substantial in nature; rather, employees need only show that “some harm” resulted from the action taken.[18]
In reversing the Eighth Circuit’s decision, the Supreme Court emphasized Title VII’s text, finding that nothing in the statute suggests that courts should impose an elevated standard of harm on Title VII claimants.[19] Indeed, nothing in the statutory text requires that the harm incurred be significant, “[o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heighted bar.”[20] To require an elevated threshold of harm would be to impermissibly “add words” to the statute that Congress enacted.[21] According to the Court, if Congress wanted to limit liability to employer actions that cause a “significant disadvantage, it could have done so.”[22] The Court concluded that Muldrow’s allegations, if properly preserved and supported, met the “some harm” test with “room to spare.”[23]
How the Decision Shifts the Legal Landscape
The Muldrow decision’s full impact is still unfolding, but it has already significantly affected employment litigation by overturning numerous previous legal precedents.[24] This widespread effect has occurred despite the predictions of Justices Alito and Thomas, who concurred with the judgment, that the newly established “some harm” standard would not substantially alter how lower courts handle Title VII claims in the future.[25]
Both Justices Alito and Thomas seem to imply that the new “some harm” standard articulated in Muldrow is not a new standard at all. However, as Justice Kagan pointed out, the “some harm” standard unequivocally “lowers the bar Title VII plaintiffs must meet.”[26] As such, contrary to Justice Alito and Thomas’ predictions, Justice Kagan foresaw that many cases going forward would “come out differently.”[27]
Justice Kagan’s prediction has proven correct, as many employment actions that previously would not have been actionable for lack of materiality, have recently been held sufficient under Title VII.[28] Courts have also readily adopted the “some harm” standard when evaluating claims brought under other anti-discrimination laws, such as the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA), and 42 U.S.C. §1981.[29]
This is a win for employment discrimination plaintiffs who have been significantly disadvantaged by trial courts substituting their own judgments for that of the jury.
• The Muldrow Decision’s Applicability to Other Employment Decisions — While Justice Alito predicted that lower court judges “will continue to do pretty much just what they have done for years,”[30] the Muldrow decision has already changed the way courts analyze employees’ discrimination claims. For example, in West v. Butler County Board of Education, No. 23-10186, 2024 WL 2697987, at **2, 6 (11th Cir. May 24, 2024), the 11th Circuit expressly recognized that Muldrow set a new standard that departed from the circuit’s prior precedent, and remanded the case to the district court to reconsider whether a lateral transfer could satisfy the lower “some harm” requirement established in Muldrow.
Although Muldrow concerned a transfer, the scope of the decision is not limited to transfers alone, because the Court’s “reasoning relies on the language of Title VII’s anti-discrimination provisions rather than anything special about transfers.”[31] Since Muldrow, the Third, Sixth, Eighth, and 11th circuits have applied the decision to non-transfer cases.[32] In Staple v. School Board of Broward County, No. 21-11832, 2024 WL 3263357, **5-7 (11th Cir. July 2, 2024), for example, the 11th Circuit held that under the new “some harm” standard, an employee could proceed on his or her religious discrimination claim based upon his or her employer’s action of forcing him or her to use paid leave to observe a religious holiday. Other actions, such as placement on a performance improvement plan (PIP),[33] a change in duties, an increase in commute time,[34] and a placement of a letter of warning in an employee’s personal file impacting the employee’s future employment opportunities,[35] have all been deemed “some harm” for purposes of a Title VII discrimination claim.
Even allegations of scorn or ridicule, coupled with a change in workplace assignment, have been held to suffice under Muldrow’s lowered “some harm” standard. For example, in Cole v. Group Health Plan, Inc., 105 F.4th 1100 (8th Cir. 2024), the court held that an employer’s action of identifying the plaintiff’s vaccination status subjected her to scorn and ridicule, and its reassignment of her to a different patient care area sufficiently demonstrated some harm to survive summary judgment on a religious discrimination claim under Title VII.[36]
Somewhat surprisingly, the Eighth Circuit, which used to implement the most stringent heightened harm standard, seems open to accepting allegations of substantially less harm as actionable adverse actions. In Collins v. Union Pacific Railroad Co., 108 F.4th 1049 (8th Cir. 2024), a lower court dismissed Ms. Collins’ claims alleging she suffered adverse employment actions when managers assigned her too much work, assigned unpleasant tasks, and screamed at her. A three-judge panel on the Eighth Circuit determined the lower court’s grant of summary judgment was based on stale caselaw using the “materially significant disadvantage” standard and ordered that the claims be re-addressed under the Muldrow standard.[37]
That said, at least one court has held that a “mere admonition by a supervisor without any formal consequences” is not an adverse employment action, even under the Muldrow “some harm” standard. In Rios v. Centerra Group LLC., 106 F.4th 101, 112-13 (1st Cir. 2024), the First Circuit held that the supervisor scolding the employee to not eat at his desk, to not park his car in a certain location, and to not use the guard’s rest house to change his clothes did not cause any “disadvantageous change” to the terms and conditions of his employment. The court’s decision, however, seems contrary to Muldrow’s assertion that Title VII prevents discriminatory injury “without distinguishing between significant and less significant harms.”[38] Under Muldrow, a plaintiff is merely required to show some injury to the terms and conditions of his or her employment — and nothing more.[39] As Muldrow suggests, and as other scholars have postulated in the past, the materiality of the harm suffered is better addressed in the damages portion of trial.[40] Even Justice Kavanaugh observed in his concurrence that harm can be actionable even if it does not result in a change in compensation, though a lack of change in compensation “can affect the amount of damages” awarded by a jury.[41]
Finally, prior to Muldrow, many courts held that the placement of an employee on paid leave while investigating the employee’s claims of wrongdoing would not, by itself, constitute an adverse action.[42] Since Muldrow, at least one court has held this still to be the case.[43]
• The Muldrow Decision’s Applicability to Other Discrimination Statutes — As legislators modeled other employment discrimination provisions after Title VII, the Muldrow decision has also impacted claims brought under statutes such as the ADA, the ADEA, and §1981.
For example, in the Second Circuit, in Anderson v. Amazon.com, Inc., No. 23-CV-8347 (AS), 2024 WL 2801986, at **11-12 (S.D.N.Y. May 31, 2024), a district court held Muldrow’s “some harm” standard applied to both Title VII and §1981 claims. In Anderson, the court found that an employer placing an employee on a PIP and diminishing the employee’s job responsibilities qualified as adverse employment actions under §1981.[44] Similarly, a district court in the 11th Circuit, in Lenord v. RaceTrac, Inc., No. 1:22-CV-004423-SCJ-RDC, 2024 U.S. Dist. LEXIS 109788, at *48, n.24 (N.D. Ga. June 21, 2024), theorized that because §1981 claims share an analytic framework with single-motive Title VII claims, the courts will likely officially extend Muldrow to §1981 claims at some point.
Similarly, in Mitchell v. Planned Parenthood of Greater N.Y., Inc., No.1:23-cv-01932 (JLR), 2024 WL 3849192, *10 (S.D. N.Y. Aug. 16, 2024), the court held that “Muldrow applies to discrimination claims under the ADEA and the ADA, given that the pertinent language in those statutes is similar to” the language in Title VII.
Further, the Sixth Circuit, in Milczak v. GM, LLC, 102 F.4th 772, 787 (6th Cir. 2024), applied the Muldrow standard in an ADEA case. In Milczak, the court held the employee’s two transfers, his denied opportunities for overtime pay, and the requirement he work later hours collectively qualified as adverse actions.[45] Thus, from these few courts’ applications of the Muldrow standard, the authors suggest that the door is open for plaintiffs to pursue discrimination cases for adverse employment actions that are considerably less severe than those which courts traditionally considered actionable.
Will Muldrow Impact What Constitutes an Adverse Action in a Retaliation Claim?
While Muldrow remedied a long-standing circuit split as to what constituted adverse action for purposes of Title VII discrimination claims, the decision may have further muddied the waters as to what constitutes an adverse action in the retaliation context. As noted above, Muldrow eviscerated any requirement that employees demonstrate a materially adverse action to prove discrimination. Yet, under existing Supreme Court precedent outlined in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), employees are still required to show that an action is “materially adverse” in a retaliation claim.[46]
Employers may attempt to rely on this supposed discrepancy to argue that, going forward, the “materiality” requirement in a retaliation claim requires a showing of a substantially more egregious adverse action than what is required in a discrimination claim. Stated differently, employers’ counsel may argue that the existence of a materiality requirement in a retaliation claim — and the now absence of any such requirement in a discrimination claim — raises an inference that retaliatory acts must cause more significant harm to an employee than acts supporting a discrimination claim. For the reasons stated below, this argument is unlikely to succeed.
It is unlikely that courts will conclude that the continued existence of Burlington’s “materiality” requirement in retaliation cases implies that such claims are now somehow more burdensome to prove. Any argument that there is an equivalency between Burlington’s “materiality” standard and the pre-Muldrow heightened “materially adverse” standard in discrimination claims is misplaced, as courts have consistently held that the Burlington “materiality” standard is intentionally less stringent.[47]
In Burlington, the Court determined that the differing purposes behind Title VII’s anti-retaliation and anti-discrimination provisions necessitated a different standard as to what should be deemed an actionable retaliatory adverse action. Whereas discrimination claims “prevent injury to individuals based on who they are,” retaliation claims “prevent harm to individuals based on what they do.”[48] Thus, the Court determined that what is at issue in a retaliation claim is whether “a reasonable employee” would have found the challenged action “materially adverse.”[49] In a retaliation claim, “materiality” is in the eye of the beholder, i.e., from the perspective of a reasonable employee in the plaintiff’s shoes. In other words, the only issue before courts analyzing retaliation claims is whether the actions were substantive enough to have dissuaded a reasonable worker from engaging in protected activity.
In the factual context presented in Burlington, the Court concluded that a jury could reasonably have found that reassigning the employee’s duties, even when they fell within the employee’s job description, together with a 37-day (ultimately paid) suspension, constituted a materially adverse action that would have dissuaded a reasonable worker in the plaintiff’s position from engaging in protected activity.[50] These actions likely would not have been actionable under the more rigorous “materially adverse” standard that some courts deemed applicable to discrimination claims.
Since Burlington, courts have consistently held that the retaliatory “materially adverse” standard is more lenient than the “materially adverse” standard sometimes employed in the discrimination context. For example, in Laster v. Georgia Department of Corrections, No. 22-13390, 2023 WL 5927140, at **2-3 (11th Cir. Sept. 12, 2023), the 11th Circuit recognized that the “materially adverse” standard set forth in Burlington is “decidedly more relaxed” than the court’s “materially adverse” discrimination standard. According to the court, a retaliatory action is “sufficiently adverse” when that action “well might have” dissuaded a reasonable worker from engaging in protected activity.[51]
This “might-have-dissuaded” standard has been held by the 11th Circuit, and other circuits, as satisfying Burlington’s “materially adverse” requirement.[52] Given this lower threshold, the 11th Circuit found that Laster’s allegation that he was kept in a physically demanding post sufficiently satisfied the Burlington “materially adverse” standard.[53]
Relying upon this lower threshold, courts have found that a whole range of employer actions have satisfied the Court’s “materially adverse” or “might-have-dissuaded” standard. Such actions include reassignment to lesser desirable duties,[54] unfavorable performance reviews, threats to terminate, screaming at an employee in front of colleagues,[55] letters of warning,[56] filing false criminal charges,[57] denying overtime, assigning menial tasks, delaying a required physical exam,[58] denying the employee the right to travel to conferences, denying performance awards, and refusal to transfer to another office.[59]
Since Muldrow, no court has inferred that the litany of adverse actions named above would no longer satisfy Burlington’s “materially adverse” requirement; nor has any court found that the existence of that standard was somehow made more stringent with the Court’s removal of any “materiality” requirement in discrimination cases. In fact, at least one court has held that the Muldrow decision has had no impact on a court’s analysis of retaliatory adverse actions. Specifically, a district court in Pennsylvania ruled in Hamilton v. Norristown State Hospital, No. 23-4068, 2024 WL 3623521, at **4-7 (E.D. Pa. Aug. 1, 2024), that the “some harm” standard set forth in Muldrow does not apply to retaliation claims. Instead, the court held that the plaintiff was bound by the “materially adverse” language set forth in Burlington.[60]
The court found Muldrow to have no bearing on its analysis; rather, the court relied on pre-Muldrow controlling retaliation caselaw and held that the employee’s allegations of abusive interpersonal interactions with daily work assignments sufficed the materiality standard.[61] It is unlikely such actions would have been held sufficient in circuits applying a “materially adverse” action in a pre-Muldrow discrimination analysis.
For the reasons stated above, defense counsel will likely be unsuccessful in arguing that the “materially adverse” standard set forth in Burlington is equivalent to the “materially adverse” requirement some courts previously applied to discrimination claims. Due to its differing purpose, the retaliatory adverse action standard is intended to be more lenient.[62] No change in that interpretation is necessitated by Muldrow.
Critique of the Differing Standards
Despite caselaw that provides some clarification, the requirement that plaintiffs must show that a retaliatory action is “materially adverse” is likely to cause continuous confusion in the courts. As Justice Kagan noted in Muldrow, what is or is not material is often in the “eye of the beholder.”[63] In both discrimination and retaliation claims, the eye of the beholder is the courts. As courts differed in how they construed the “materially adverse” standard in the context of discrimination claims, courts may also differ on how to properly interpret the term “materially adverse” in retaliation claims, opening the door to drastically different outcomes.
Perhaps the “materiality” framework that is currently applicable to retaliation claims should be rejected for the same reasons it was rejected by the Supreme Court in discrimination claims. In Muldrow, the Supreme Court rejected the imposition of a heightened harm standard because the statutory text did not call for it.[64] But like the anti-discrimination provisions, there is nothing in the anti-retaliation provisions to distinguish “between transfers causing significant disadvantages and transfers causing not-so-significant ones.”[65] There is nothing in either provision that establishes an elevated threshold of harm.
To paraphrase Justice Kagan, to demand materiality is to add words that Congress did not include, and as such, requires something more of employees than the law as written.[66] If courts stick to the text of the statute, as Justice Kagan suggested in her 2015 talk, no sort of materiality requirement should be read into the anti-retaliation provisions of Title VII.
Conclusion
Muldrow was a victory for employees, despite all the questions that have erupted because of the decision. It broadened the types of claims that are actionable discrimination and unified lower courts’ varying harm requirements. Hopefully, the decision regulates the amount of summary judgments doled out in employment discrimination cases and ensures even-handed Title VII application across circuits.
[1] Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube (Nov. 25, 2015), https://www.youtube.com/watch?v=dpEtszFT0Tg. Notably, Justice Kagan has since rescinded this claim. West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting).
[2] Muldrow, 144 S. Ct. at 977.
[3] 42 U.S.C. §2000e-2(a)(1).
[4] Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-66 (1986); Williams v. Fulton County Sch., 2022 U.S. Dist. LEXIS 251140 (N.D. Ga. July 6, 2022).
[5] Oncale, 523 U.S. at 80.
[6] See Boone, 178 F.3d at 256 (finding that reassignment to work in a small wind tunnel was not significantly detrimental).
[7] Spring, 865 F.2d at 885-86.
[8] Chambers, 35 F.4th at 879.
[9] Hamilton, 79 F.4th at 497-8.
[10] Id. at 506.
[11] Muldrow, 144 S. Ct. at 973.
[12] Id. at 971.
[13] Id. at 971-973.
[14] Id. at 972.
[15] Id.
[16] Id. at 973.
[17] Id.
[18] Id. at 974.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at 976.
[23] Id. at 977.
[24] Id. at 980, n.2.
[25] Id. at 979 (Alito, J., concurring); Id. at 977 (Thomas, J., concurring).
[26] Id. at 980, n.2.
[27] Id.
[28] See examples under this article’s subheading, “The Muldrow Decision’s Applicability to Other Employment Decisions.”
[29] See examples under this article’s subheading, “The Muldrow Decision’s Applicability to Other Discrimination Statutes.”
[30] Muldrow, 144 S. Ct. at 979 (Alito, J., concurring).
[31] Mitchell v. Planned Parenthood of Greater N.Y., Inc., No. 1:23-cv-01932 (JLR), 2024 WL 3849192, at *9 (S.D.N.Y. Aug. 16, 2024).
[32] See, e.g., Peifer v. Pennsylvania, 106 F.4th 270, 277 (3d Cir. 2024) (applying Muldrow to non-transfer case); Williams v. Memphis Light, Gas & Water, no. 23-5616, 2024 U.S. App. LEXIS 17623 (6th Cir. July 16, 2024) (same); Cole v. Grp. Health Plan, Inc., 105 F.4th 1100, 1114 (8th Cir. 2024) (same). Moreover, in Davis v. Orange County, No. 23-12759, 2024 WL 3507722, at *4 (11th Cir. July 23, 2024), the 11th Circuit applied the new Muldrow standard to determine whether an aggrieved person plausibly stated a claim for retaliation under Title VII. Specifically, the court recognized that a plaintiff need only show that what they opposed as an unlawful discriminatory practice caused “some injury” to meet the statutorily protected activity prong of a Title VII retaliation case. Thus, the 11th Circuit stated that a plaintiff “does not need to meet [the] higher pre-Muldrow standard to make out a claim for retaliation under Title VII.” As a result, the court remanded the case to the district court to determine whether the action the employee opposed met the “some harm” standard for his reasonable belief of discriminatory harm to avoid a motion to dismiss. The action the employee opposed was issuing written reprimands with no further disciplinary action to unvaccinated employees who failed to submit a timely exemption request in connection with a COVID-19 vaccination mandate.
[33] Anderson v. Amazon.com, No. 23-CV-8347 (AS), 2024 WL 2801986, *11 (S.D.N.Y. May 31, 2024), (employee suffered “some harm” because the PIP tarnished her permanent record, excluded her from certain meetings, and saddled her with more work tasks).
[34] Carter v. Eureka Multifamily Group, No. 23-2:22-CV-01429-CCW, 2024 WL 2816135, at *5 (W.D. Pa. June 3, 2024) (change in duties and an increase in commute time determined to be adverse actions even though employee suffered no change in title, pay, or benefits).
[35] Leite v. School District of Philadelphia., No. 22-306, 2024 WL 3606319, at **6-8 (E.D. Pa. June 30, 2024), (a written warning placed in personnel file may constitute “some harm” if the warning interfered with the employee’s future employment opportunities).
[36] Cole, 105 F.4th at 1114-1115.
[37] Collins, 108 F.4th at 1053.
[38] Muldrow, 144 S. Ct. at 976.
[39] Id. at 976-77.
[40] Rosalie Berger Levinson, Parsing the Meaning of “Adverse Employment Action” in Title VII Disparate Treatment, Sexual Harassment, and Retaliation Claims: What Should be Actionable Wrongdoing?, 56 Okla. L. Rev. 623 (2003).
[41] Muldrow, 144 S. Ct. at 979 (Kavanaugh, J., concurring).
[42] Jones v. Southeastern Pa. Transp. Authority, 796 F.3d 323, 326 (3d Cir. 2015) (Third Circuit joining a chorus of other Courts of Appeals in finding that suspension with pay pending investigation does not constitute adverse action).
[43] Carter, 2024 WL 2816135 at **4-5 (placement on paid leave to investigate employee’s claims does not constitute adverse action).
[44] Id. at *28.
[45] Milczak, 102 F.4th at 787.
[46] Muldrow, 144 S. Ct. at 971 (citing Burlington, 548 U.S. at 68 for the proposition that this means that the retaliatory action causes “significant harm”).
[47] Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008); see also Ogbondah v. Benchmark Elecs. Huntsville, Inc., 2009 U.S. Dist. LEXIS 139144 (N.D. Ala. Mar. 20, 2009).
[48] Burlington, 548 U.S. at 67 (rejecting the limitation of actionable retaliation to so-called “ultimate employment decisions”).
[49] Id. at 68.
[50] Id. at 71-72.
[51] Laster, 2023 WL 5927140 at *3 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
[52] Rather, as many other circuits have now recognized, the Burlington “might-have-dissuaded” standard applies to “all Title VII retaliation claims,” Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862 (11th Cir. 2020) (per curiam).
[53] Laster, 2023 WL 5927140 at *3.
[54] See id.; see also Crawford v. J.P. Morgan Chase & Co., 531 Fed. App’x 622 (6th Cir. 2013) (adopting the Burlington standard in the FMLA retaliation context, finding that the change in job responsibilities supported an inference of an adverse employment action).
[55] Planadeball v. Wyndam Vacation Resorts, Inc., 793 F.3d 169, 178-179 (1st Cir. 2015).
[56] Montano v. Donahoe, No. CV 14-0634 WJ/GJF, 2016 WL 5338520, at *12 (D.N.M. July 29, 2019) (some actions, such as being turned down for a job position or receiving a letter of warning, could constitute adverse employment actions under the Burlington standard).
[57] Lore v. City of Syracuse, 670 F.3d 127, 171 (2d Cir. 2012).
[58] Robinson v. Winter, 457 F. Supp. 2d 32, 34 (D.C. Cir. 2006).
[59] Nurriddin v. Bolden, 674 F. Supp. 2d 64, 90 (D.C. Cir. 2009).
[60] Hamilton, 2024 WL 3623521 at **2-3.
[61] Id. at *5.
[62] Crawford, 529 F.3d 961; see also Ogbondah, 2009 U.S. Dist. LEXIS at 139144.
[63] Muldrow, 144 S. Ct. at 975.
[64] Id. at 974.
[65] Notably, Justice Kagan called any such heightened requirement “extra-textual.” See Id. at 976.
[66] Id. at 974-76.
This column is submitted on behalf of the Labor and Employment Law Section, Yvette D. Everhart, chair, and Alicia Koepke, editor.