Transfers & Adverse Action After Muldrow
Post-2024 decisions applying Muldrow v. City of St. Louis’s "some harm" test to lateral transfers, shift assignments, and other job changes — where the lowered threshold now revives claims at the pleading stage, and why plaintiffs who cannot tie a change to an identifiable term or condition of employment still lose.
Lateral Transfers and Shift Changes Under Muldrow’s "Some Harm" Test
Muldrow lowered the floor without discarding it: "To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment," but what she "does not have to show is that the harm incurred was ‘significant’ or otherwise exceeded some heightened bar." The covered territory is wide, because the "‘terms [or] conditions’ phrase is not used ‘in the narrow contractual sense’; it covers more than the ‘economic or tangible.’" Muldrow v. City of St. Louis, 601 U.S. 346 (2024). The statutory hook is 42 U.S.C. § 2000e-2(a), which makes it unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" — text that grades harm with no adjective at all.
At the pleading stage, the new floor is doing real work. Vacating a dismissal, Back v. Bank Hapoalim, B.M., No. 24-1064-cv (2d Cir. Nov 12, 2024) read Muldrow to require no showing "that the harm incurred was significant[] [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar" — "[t]he transfer must have left her worse off, but need not have left her significantly so." A senior employee’s forced move to a department where she had never worked, alleged as a "transfer away from the center of power" that "would be perceived by her colleagues for what it was—a demotion," cleared the bar: she "plausibly alleged that the transfer negatively affected the terms and conditions of Back’s employment by, inter alia, impairing her career advancement prospects," and "[u]nder Muldrow, such allegations are sufficient to allege an adverse employment action that survives a motion to dismiss."
Shift assignments mark the standard’s outer edge. Brody v. Costco Wholesale Corporation, No. 3:23-cv-00293 (W.D. Wis. Jan 23, 2025) asked whether the employer’s conduct caused "some injury respecting her employment terms or conditions" that left the employee "worse off" — and granted summary judgment on a night-shift forklift assignment where pay and hours matched the day shift. "[T]here is nothing inherently injurious about one shift involving more or less driving than another," the court held, and the plaintiff never "explain[ed] the basis of his contention that the night shift was ‘less desirable’"; on that record, "no reasonable jury could conclude that Brody suffered an adverse employment action." Personal preference, undisclosed to the employer and unmoored from any term or condition, is still not harm.
The pattern two years in: Muldrow moved the fight from the size of the harm to its identifiability. Plaintiffs win by naming the concrete thing that changed — career track, department, supervisory scope, schedule, duties — and pleading objective facts showing they were left worse off with respect to it. Employers win when the record shows equivalence: same pay, same hours, same responsibilities, and nothing but the employee’s own say-so that the new assignment was worse. For transfers, shift changes, and denied training alike, the drafting task is the same on both sides — tie the change (or its absence) to a specific term or condition of employment, because the adjective war is over.