Transfers & Adverse Action After Muldrow

Adverse Employment Actions After Muldrow’s "Some Harm" Standard

Muldrow reset the threshold: "An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant." The Court was explicit about what it was discarding — "[t]o demand ‘significance’ is to add words to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more than the law as written." And the covered terrain is broad, 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 anti-retaliation provision keeps its higher "materially adverse" bar; the anti-discrimination provision in 42 U.S.C. § 2000e-2(a) "flatly ‘prevent[s] injury to individuals based on’ protected status . . . without distinguishing between significant and less significant harms."

The lowered bar is not no bar. Granting summary judgment to the employer, Buck v. Modine Manufacturing Company, 776 F. Supp. 3d 357 (W.D. Va. 2025) read Muldrow to mean "a transfer has to actually ‘treat a person worse’ in order to be an adverse action" — and held that "Muldrow did nothing to change the fact that a plaintiff still must show how an employer’s action affects ‘an identifiable term or condition of employment.’" A supervisor’s patronizing, condescending "continuing course of conduct" failed that test, because the plaintiff "has not described how this ‘course of conduct’ affected any term or condition or benefit of her employment." Hostile-work-environment claims, the court added, still "must satisfy the ‘severe or pervasive’ requirement" — Muldrow governs discrete acts, not harassment doctrine.

In the Second Circuit, Bonaffini v. Brooklyn College, 751 F. Supp. 3d 67 (E.D.N.Y. 2024) recognized that Muldrow "may have broadened the definition of ‘adverse employment action’" by rejecting "qualifiers like ‘significant’ or ‘material,’ terms that had been part of the test used in the Second Circuit," in favor of asking whether the employee suffered "some injury," "some harm," "some disadvantage[]," or was "worse off." At minimum, "Muldrow suggests that courts should apply the ‘adverse employment action’ factor using the same standard used for the fourth prima facie factor – plaintiff’s showing of adversity need only be de minimis." Even so, a professor’s reassignment to teach Western Civilization in English and a five-hour scheduling gap flunked: "plaintiff’s perception of adversity is wholly subjective, ranging from the non-injurious or harmful to the trivial. Teaching English courses and having a five-hour schedule gap are not adverse employment actions within Muldrow."

Bonaffini also flagged the safety valve Muldrow itself built in: courts should not "put too much weight on what constitutes an adverse employment action because there are other protections against meritless claims – principally, requiring proof of discriminatory intent," and "a court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination." The practical playbook after these cases: plead the specific term or condition that changed — schedule, duties, supervisory scope, location, take-home equipment — and tie the harm to it with objective facts. Purely subjective disappointment still loses; any real, identifiable worsening, however modest, now gets past the adverse-action element.